Bank of America illegally copied US$300 million in software, alleges Tibco lawsuit

A Bank of America spokesman denied wrongdoing with regard to Tibco's software

Bank of America illegally copied US$300 million worth of Tibco's enterprise software for use in a massive IT project at its Merrill Lynch subsidiary, Tibco alleges in a lawsuit.

The bank stockpiled large quantities of Tibco software while it was still within the terms of a license agreement that expired in February 2013, then used the software for the project when it was out of license, according to the suit.

As of Tuesday, Bank of America hadn't filed a response to Tibco's suit, which was filed last month in the U.S. District Court for the Northern District of California. But a spokesman said the bank had done nothing wrong.

"We have a long history of positive relationships with our third party partners," spokesman Mark Pipitone said via email. "In accordance with that, we have acted in good faith to observe the scope of Tibco's license at all times, and we intend to vigorously defend ourselves."

Tibco's lawsuit provides a detailed narrative of Bank of America's alleged wrongful deeds.

The bank is a long-time Tibco customer, and an addendum to its 2010 license agreement allowed Bank of America to deploy various Tibco products for a further three years from that date, the suit states.

But the license had "specific restrictions" on how the bank could deploy and make copies of the software, Tibco says. The restrictions aren't specified in the lawsuit, which says some terms of the companies' agreement are subject to a confidentiality provision.

About six months after the bank's license expired, Tibco discovered the bank was "rolling out a large integration initiative called Merrill Lynch One," the suit states.

It was initially deployed to 400 advisors in September 2013, with another 14,000 set to be migrated during this year, according to the suit.

The bank does "not have licensed copies of the TIBCO Registered Software, and have instead made unauthorized copies and used the same for the Merrill Lynch One Project," the suit alleges.

The alleged stockpiling of software during the three-year license period resulted in an accumulation of copies worth at least $300 million, it says.

Tibco says it gave Bank of America chances to make good, but that the bank refused. It wants an injunction preventing the bank from using the software, for the software copies to be impounded and various damages.

While it's impossible to know who is in the right without more details, one observer said, the lawsuit may carry a lesson for all enterprises.

"An ounce of prevention is worth a pound of cure," analyst Frank Scavo, managing partner of IT consulting firm Strativa, said via email.

"The lesson for enterprise IT organizations is to keep track of your software license agreements and be sure you are in compliance," he said. "This can be really difficult for large companies, especially those that have grown through a series of acquisitions, like Bank of America has. The only solution is to do a better job of tracking software license compliance through use of an IT asset management system."

Tibco's suit names as defendants Bank of America and its subsidiaries Bank of America National Association and Merrill Lynch, Pierce, Fenner and Smith.

Chris Kanaracus covers enterprise software and general technology breaking news for The IDG News Service. Chris' email address is Chris_Kanaracus@idg.com

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