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The Swedish Supreme Court has ruled that passive storage of a software backup copy after expiry of the software license did not constitute copyright infringement.

The background to the case was the following. Under a license agreement regarding an IT-administration software with a software provider (the ”Company”), the City of Malmö (the ”City”) created a backup copy of the licensed software.

After the City decided to procure a new administrative system from a different provider, the Company terminated the license agreement with the City. The City continued to passively store the backup copy of the software for some time after the expiry of the license agreement. The Company claimed that the keeping of the backup copy after the license had expired constituted copyright infringement.

In a ruling on 25 September 2018, the Swedish Supreme Court concluded that there is no obligation to erase a backup copy that has been rightfully created under the appropriate license and that such backup copy may be passively stored. Hence, the City’s passive storage of its backup copy of the software did not constitute copyright infringement.
The ruling may be of special interest in situations where software licensors audit their licensees use of software to ensure that licensee’s use of the software is within the license limits.