Click and Copy: Breach of Online Licence Agreements and Copyright Infringement

Résumé :

The enforceability of click-through software licences and agreements for online software-based services is critical within the information technology industry. Software vendors and cloud-computing service providers require certainty that the licence terms governing these products will be enforceable. In other words, vendors require certainty that, if there is a breach by a user, the law will provide a remedy, under the law of either contract or copyright, or both. When does a breach of a licence or breach of online terms of use constitute not only a contractual breach but also an infringement of copyright in the software? The outcome of this question affects whether a vendor or provider would be able to access the infringement remedies under part IV of the Copyright Act, including injunction, damages, accounts, delivery up, and statutory damages. By reviewing some of the recent case law in this area, this article examines the intersection of copyright and contract law in the context of click-through software licences and online terms of use, specifically when a breach of such terms constitutes copyright infringement, giving rise to remedies under the Copyright Act, and when a breach is merely a breach, giving rise to remedies and potential damage awards under contract law.