Watching your step –
How to avoid unintentional
infringement while working
with third parties
The factual situation in Campaigntrack v Real Estate Tool Box 1 is not an
uncommon one. Wanting a better software program for its operations, a
business enters into an arrangement with a software developer who has
experience in that area to develop a new program with reference to a
competitor program’s functionality. What was interesting and should
encourage businesses and individuals to consider their actions when faced
with allegations of copyright infringement, was the Full Federal Court’s
opinion on what constitutes authorisation of infringement of copyright.

Inspire November 2022
Background 8
In this case, Biggin & Scott
Corporate Pty Ltd (Biggin & Scott),
a real estate agent, had been using
Campaigntrack software until
May 2015, when it transitioned
to using DreamDesk (at that time
also owned by Campaigntrack) for
running its marketing campaigns
for the sale of real estate.

Mr. Semmens had previously
developed DreamDesk in
competition with Campaigntrack
and admitted he had knowingly
included third-party IP that
he was not authorised to use.

Campaigntrack subsequently
bought DreamDesk in July 2016.

When Biggin & Scott wanted an
enhanced marketing campaign
tool in August 2016, they entered
into an arrangement with Mr
Semmens to build Real Estate Tool
Box (RETB Software). As part of
that arrangement, they set up a
joint venture company, Real Estate
Tool Box Pty Ltd (RETB), with
Ms Bartels, a director of Biggin
& Scott, as Company Secretary.

Mr Stoner, another director of
Biggin & Scott, instructed Mr
Semmens to build marketing
campaign software “that does not
breach any other [company’s] IP or
ownership, particularly DreamDesk
or Campaigntrack”. To make the
point again, Mr Stoner further
wrote in the same letter, “In simple
terms, we do not want [anything]
used that can be claimed as owned
by the two companies above”.

In late September 2016,
Campaigntrack became aware
that the RETB Software potentially
reproduced the DreamDesk source
code, and on 29 September 2016,
Campaigntrack’s lawyers put
Biggin & Scott on notice that they
were aware of “ improper access”
and “duplication of [DreamDesk]
code”. Campaigntrack sought
undertakings from Biggin & Scott
and all relevant parties that any
1 intellectual property already
obtained would not be used for any
purpose and would be destroyed.

Mr Semmens did not sign the
undertaking. On 10 October 2016,
Campaigntrack terminated Biggin
& Scott’s access to DreamDesk.

The RETB Software went
live on 10 October 2016 and
continued to be used by Biggin
& Scott until June 2018.

First Instance Decision
At first instance, Campaigntrack
was only partially successful.

Justice Thawley found that
Mr Semmens, as the primary
developer of the RETB Software,
had directly infringed copyright
in the DreamDesk source code
and had authorised the infringing
acts which other developers
carried out under his supervision.

However, Justice Thawley did
not find against the other parties
RETB, Biggin & Scott, DreamDesk,
Mr Stoner and Ms Bartels.

Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd [2022]