InDyne, Inc. sued Abacus Technology Corp. for copyright infringement relating to Abacus's setting up of a NASA website.  InDyne's allegations were that Abacus used InDyne's software for setting up the NASA website and such usage infringed InDyne's copyright.

The trial court granted summary judgment of non-infringement to Abacus, finding that InDyne did not have sufficient evidence to show that the copied elements of software were original, and thus worthy of copyright protection.  Abacus sought and was awarded its fees as a prevailing party under 17 U.S.C. § 505.  InDyne appealed this fee award.

InDyne argued on appeal that Abacus was "a bad actor" and had essentially gotten away with copyright infringement.  The Eleventh Circuit was not persuaded.  InDyne had failed to put forth adequate evidence of copyright infringement (a decision the Eleventh Circuit had previously upheld), thus, by definition, Abacus was not a copyright infringer (and therefore didn't "get away with it.")

InDyne also argued that it had sufficient witness testimony to support its claim (thus militating against a finding that its claim was objectively unreasonable).  Again, the Eleventh Circuit was not persuaded.  InDyne failed to the court the revision history for its "chameleon-like" "constantly morphing" software.

Fee award upheld.

InDyne, Inc. v. Abacus Technology Corp, Case No. 14-11058 (11th Cir. Sept. 24, 2014)