PROVING THINGS 56: A JUDGE WILL NOT SPECULATE WHEN MATTERS COULD HAVE BEEN PROVEN: COUNTERCLAIM FAILS FOR LACK OF EVIDENCE

The judgment of Mr Recorder Douglas Campbell QC in Starbuck -v- Patsystems (UK) Limited [2017] EWHC 397 (IPEC) illustrates issues in relating to recollection and credibility, it is another example of a claim (counterclaim in this case) failing because of a lack of basic evidence.”

“In the end it seems to me that I am being asked to speculate about things which Patsystems could quite easily have proved by proper evidence… and I see no reason why I should speculate. Hence I conclude that Patsystems has not proved that the ACE software reproduces the expression of the intellectual creation of NSA version 3.1, and the counterclaim accordingly fails.”

“… I accepted that Mr Starbuck’s evidence was reconstruction rather than recollection. However, people who reconstruct events will very often believe that their reconstruction is a genuine recollection; and in my judgment, Mr Starbuck was one of these people.”

THE CASE

The claimant brought an action alleging that he owned the copyright in a number of versions of computer software. The defendant alleged that the copyright had been assigned and counter-claimed for the claimant’s breach of their copyright.

ASSESSMENT OF THE WITNESSES

    1. I heard oral evidence from Mr Starbuck, Mr Paul Hayward, and Mr Martin Hemmings on behalf of the Claimant.
    2. Patsystems submitted that Mr Starbuck was an unreliable witness for two reasons.
i) First, it said that he had forgotten what actually happened in the key period (which was 1997-2001) and that his purported recollection was actually a reconstruction. I agree with this criticism, and I will take it into account.
ii) Secondly it also submitted that Mr Starbuck was dishonest. When I pressed Patsystems to explain the basis of its allegation that Mr Starbuck was dishonest, the only basis given by Patsystems was that Mr Starbuck said he remembered things when actually he did not. I reject this allegation. As I have explained, I accepted that Mr Starbuck’s evidence was reconstruction rather than recollection. However, people who reconstruct events will very often believe that their reconstruction is a genuine recollection; and in my judgment, Mr Starbuck was one of these people.

FAILURE OF THE COUNTERCLAIM

 

The defendant did not adduce any expert evidence in relation to the claimant’s alleged breach of copyright.

“The ACE issue – Analysis
    1. Patsystems relied on the combination of Mr Cooks’ inspection; Mr Starbuck’s failure to disclose the source code; and the passage of cross-examination reproduced above as being sufficient to show infringement.
    2. Mr Starbuck submitted that Mr Cook’s inspection showed very little; that Mr Starbuck was not obliged to provide disclosure of his source code, that it was up to Patsystems to prove infringement; that in the absence of any source code in evidence, the counterclaim must inevitably fail; that ACE had lots of additional functionality and code not found in NSA; and that the passage of cross- examination mentioned above went no further than showing reproduction of ideas, if it even showed that.
    3. I agree that Mr Cooks’ inspection is insufficient per se. All this showed was that very minor amounts of code appeared to have been reproduced in 2 of the 76 programs. It may be that the 76 programs selected for inspection on that occasion were not representative of the whole of ACE but the time to take that point has long gone.
    4. I am more troubled by Mr Starbuck’s failure to disclose the source code. However it seems to me that the real reason why the source code is not before me is because Patsystems failed to take the opportunity given to it by HHJ Hacon at the case management conference to press for inspection thereof until it was too late. Moreover I was told that Patsystems never warned Mr Starbuck that it would ask for an adverse inference to be drawn against him if he did not disclose it.
    5. I do not agree that the absence of source code is in itself determinative of non- infringement, as Mr Starbuck submits. If there is alternative evidence on which the Court can properly find infringement, the lack of source code does not matter. Furthermore the presence of additional functionality in ACE having nothing to do with NSA is neither here nor there.
    6. The key question to my mind is whether the cross-examination gets Patsystems home. The high point is Mr Starbuck’s statement that “I am sure there are lots of modules that would be very, very similar However although Mr Starbuck refers to “modules “, he also seems to be thinking about “building blocks “, and he does not explain what he means by either. Prima facie this sounds more like ideas than the expression of ideas.
    7. In the end it seems to me that I am being asked to speculate about things which Patsystems could quite easily have proved by proper evidence, such as an expert report based on actual source code comparisons, and I see no reason why I should speculate. Hence I conclude that Patsystems has not proved that the ACE software reproduces the expression of the intellectual creation of NSA version 3.1, and the counterclaim accordingly fails.
Conclusion
  1. Mr Starbuck’s action for copyright infringement fails because Patsystems owns the copyright in all versions of NSA pursuant to the 1999 Assignment, including in particular version 3.1. The counterclaim fails because Patsystems has not proved that the ACE software used by Mr Starbuck infringes such copyright”

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