|
|
Failure to comply with a main or ancillary contractual obligation may result in the obligation to compensate, but this requires proof of loss to one of the parties and the causal relationship between the non-compliance and the damage. This understanding was used by the 3rd Panel of the Superior Court of Justice to reform the second instance decision that had condemned an insurance company for alleged copyright infringement that distributed copies of software acquired from a computer company to 30,000 brokers.
reproduction
The insurance company was not
condemned for distributing the Reproduction software
For the board, there was no violation of the main obligation of the contract, which allowed the distribution of copies to third parties. Furthermore, the panel considered that, although the insurance company had failed to comply with the contractual requirement to inform the software supplier how many copies had been distributed, the violation of this additional obligation did not result in losses that would justify compensation.
According to the supplier company, the Portugal Mobile Number List computer program was licensed only for use by the insurance company, but it had presented the brokers with copies of the software , thus violating the use license agreement, in addition to having violated its domain copyright, according to article 29, I, of Law 9,610/1998 . The company also alleged that, even after the insurer expressed disinterest in renewing the contract, the program continued to be installed on computers and received a large number of daily accesses, in addition to continued requests for technical support.
In turn, the insurance company stated that two contracts were signed with the software supplier and that, in the first of them, there was an express clause providing for unlimited use and free reproduction and distribution of the product. She further argued that a value was agreed via email so that the product could continue to be distributed after the contracted license ended.
In the first instance, the court understood that the insurance company acted within the limits of the contract, deeming the action unfounded. The sentence, however, was reversed by the Court of Justice of Rio de Janeiro (TJ-RJ), which established compensation equivalent to the value of the contract multiplied by the number of copies distributed.
Authorized distribution
The insurer's appeal rapporteur, minister Nancy Andrighi, stated that, as found by the first degree court, the insurer was authorized to distribute copies of the program not only for use in its own units, but also for use by third parties, and The first contract expressly stated the duty to communicate to the software owner the total number of copies used.
For the judge, the fact that the second contract omitted the obligation to inform the number of copies in use indicates that the parties no longer intended to maintain this point of the agreement, because, when they wanted to, they expressly inserted the provision. on the instrument.
"It is undisputed that the appellant (contractor) failed to inform the defendant (contractor) of the number of copies distributed and the users to whom they were intended. This failure, however, only occurred during the term of the first contract, ending upon entry in force of the second agreement, since the clause that provided for the aforementioned obligation was removed", argued the rapporteur.
In the process, according to the judge, what is verified is the breach of an ancillary obligation by the contractor, since the main obligation was the remuneration for the license to use the software and for the provision of the technical assistance service. However, the minister noted that such non-compliance did not cause harm to the contractor, as the consideration stipulated for the use license and technical support was fixed, regardless of the number of copies distributed.
When reinstating the first instance sentence, the rapporteur pointed out that, if the insurer had complied with the obligation to inform the number of copies during the term of the first contract, this circumstance would not change the amount to be paid by it and would not result in profit or loss to the other company. "In the absence of damage, there is no need to talk about an obligation to repair", she concluded. With information from the STJ press office.
|
|
发表于 2024-3-12 14:33:17
