Navitaire Inc v easyJet Airline Co is an English copyright case between Navitaire, owner of the OpenRes airline reservation system, and its licensee easyJet, which replaced OpenRes with a new system, eRes, written by the Californian developer BulletProof. easyJet wanted eRes to be substantially indistinguishable from OpenRes in use, and it achieved this without access to the OpenRes source code. Navitaire argued that this “non-textual copying” infringed its copyright. In July 2004 Mr Justice Pumfrey rejected that argument, while finding infringement in narrower respects, including easyJet’s unauthorised modifications to licensed code.[1]
Background
OpenRes was a booking system used mainly by low-cost airlines selling tickets without paper tickets. easyJet was one of the first licensees. The licence, signed on 18 November 1996, granted easyJet a non-exclusive, perpetual licence to use OpenRes, terminable by the licensor for uncured default. Title stayed with the licensor; easyJet’s rights could not be transferred without consent; software supplied in machine-readable form could be copied “only for back-up or archive purposes”; and easyJet could not disclose OpenRes or related information outside easyJet without consent. easyJet retained title to its own data generated by OpenRes.[1]
OpenRes included a web booking module, TakeFlight, supplied as source code because it was written in an interpreted language. easyJet copied and modified TakeFlight over several years to fix bugs, run promotions and add foreign-language sites.[1]
The dispute
Navitaire’s case had three main parts:[1]
- User interface. eRes reproduced the “look and feel” of OpenRes, many of its user commands (Navitaire’s expert put it at all complex commands and 44% of simple commands) and its screen displays and reports. Navitaire said this reproduced the OpenRes program, or its modules, as copyright works, even though the eRes code was entirely different.
- TakeFlight. easyJet’s modifications and clones of TakeFlight were said to breach the licence and infringe copyright.
- Databases. Interim copies made while migrating easyJet’s data to eRes, and the use of knowledge of the OpenRes database structure to design eRes, were said to infringe.
Decision or outcome
- No infringement by emulating behaviour. The court held that the command names and their syntax were not protected as a separate copyright work, and that reproducing the functional behaviour of a program without copying its code did not infringe. Character-based (VT100) screen layouts were treated as ideas underlying the interface and the claim on them failed.[1]
- GUI screens and icons protected. The graphical screens were held to be artistic works, and the claim succeeded for them and for the icons.[1]
- Unauthorised changes to licensed code. easyJet’s claim that there was an oral agreement allowing it to modify TakeFlight failed. The judge found that the licensor’s programmer knew of the modifications and cloning, but because easyJet had not relied on any representation or inaction, Navitaire was not barred by acquiescence or estoppel and was entitled to relief.[1]
- Data migration. Using screen displays to find out what data was held was permitted, since a customer cannot use its data without knowing what is there. Sending BulletProof ODBC links and database tapes went further than necessary and was held to infringe, but because a neutral file format would have worked in a reasonable time, it caused no loss. Naming the OpenRes datasets in a spreadsheet was a breach of contract, though trivial.[1]
The judge summarised that, except in limited respects concerning the migration of data and the supply of certain database extracts, the action failed.[1]
Significance for software licensing and SAM practice
The case marks the boundary between a customer’s freedom to replace a licensed system and the vendor’s rights in that system. Building a new system that behaves the same way was lawful; modifying licensed code beyond the licence grant, and handing the vendor’s database materials to a new supplier, were not.[1]
Lessons learned
- A licence that allows copying only for back-up or archive purposes does not let the customer modify or clone the vendor’s code, even when the vendor’s staff know about it. easyJet could not prove an oral permission, and the licensor’s knowledge did not amount to acquiescence.[1]
- Rebuilding a licensed system’s behaviour without access to its source code is not, by itself, copyright infringement in England. The claim based on look and feel and the command set failed.[1]
- Plan the exit from a licensed system early: how data is extracted and handed to a new supplier can itself infringe. Sending database tapes and ODBC links to the new developer infringed, while a neutral export format would not have.[1]
- Customers own their data, but the vendor’s database structure and graphical screens can still be protected works. The licence reserved data ownership to easyJet, yet the GUI screens were artistic works and some database material was protected.[1]