Timmins Software Corporation d/b/a Mitrend v. EMC Corporation d/b/a Dell EMC et al. (19-cv-12053).

Mitrend, a Marlborough company that provides software and services relating to datacenter infrastructure assessment and performance, accuses EMC and Dell of copyright infringement, violation of the Digital Millenium Copyright Act, unjust enrichment, breach of contract, and unfair competition. Mitrend contends that EMC, a wholly-owned Dell subsidiary, began using Mitrend’s analysis service in 2006 under a master services agreement and a number of statements of work, using EMC software for data collection. Mitrend realized that the data collection process could be improved upon, and independently conceived of an automated and accelerated process for data collection that substantially reduced collection times. Mitrend contends that the new software was adopted throughout EMC and became the company’s primary data collection method. Mitrend’s relationship with EMC rapidly grew to several million dollars per year, and EMC did not develop its own competing software. Under the statement of work dealing with this, Mitrend’s software was deemed to remain Mitrend’s property, and all derivative works would belong to Mitrend. Further, a separate software license agreement prohibited reverse engineering of the software by EMC, as well as prohibiting removal of copyright notices. These terms were carried forward in a 2015 agreement between the businesses. In 2017, however, after EMC was acquired by Dell, EMC demanded changes to the license that would include transfer of ownership of the software IP to EMC/Dell. Mitrend refused, and provided notice of termination effective March 2, 2017, although at EMC’s request the parties subsequently agreed to extend the termination date to November 30, 2017. Shortly thereafter, EMC announced the launch of its own competing product. Mitrend contends that EMC sought the extension to develop and deploy its competing software, which it later discovered to be using the same scripts as the Mitrend product, which it alleges EMC copied. The case is assigned to Judge Talwani.

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