How Australian Courts Decide If Software Has Been Copied: The Motorola v Hytera Lesson

Imagine this scenario:

You're the CEO of a technology company. One of your key engineers leaves and joins a competitor. Six months later, the competitor launches a product that looks eerily similar to yours. You suspect they used your source code. But by the time you investigate, the engineer has deleted the evidence, the code has been mixed with the competitor's own code, and the original files are gone.

Can you still prove copyright infringement?

This is exactly what happened in Motorola Solutions v Hytera Communications [2024] FCAFC 168 — a landmark case that has become the go-to authority for software copyright disputes in Australia.

Let's break down what happened, what the courts decided, and what it means for your business.

The Players and the Dispute

Motorola Solutions is a well-established manufacturer of digital mobile radios (DMRs) — the two-way radio systems used by police, emergency services, and businesses.

Hytera Communications is a Chinese company that entered the DMR market aggressively, offering competing products at lower prices.

What Happened

Hytera Communications hired several engineers who had previously worked for Motorola Solutions. Motorola Solutions alleges that these engineers used Motorola Solutions' source code to develop Hytera Communications' competing radios.

The development took place primarily in China. Hytera Communications then imported and sold the competing radios in Australia.

Motorola Solutions sued in the Federal Court in July 2017, claiming:

Patent infringement — Hytera Communications infringed three of Motorola Solutions' patents
Copyright infringement — Hytera Communications infringed copyright in 11 firmware works (software embedded in the radios)

The Complications

This wasn't a straightforward case. Motorola Solutions faced several challenges:

Evidence was deleted. Hytera Communications had deleted important source code files.
Copying happened offshore. Much of the alleged copying took place in China, not Australia.
Code was mixed. Hytera Communications had combined Motorola Solutions' source code with its own code.
Code was transformed. The combined source code was compiled into object code (machine-readable format), making comparison extremely difficult.

In short: proving copyright infringement was like finding a needle in a haystack — except the needle had been melted down and mixed with other needles.

How the Courts Decided

The Federal Court (Trial)

The trial judge found:

✅ Patent infringement: Hytera Communications infringed one of Motorola Solutions' patents
✅ Copyright infringement: Hytera Communications infringed copyright in 6 of the 11 firmware works

Motorola Solutions won at trial, but certain aspects of the copyright claim were not fully resolved, so the case went to appeal.

The Full Federal Court (Appeal)

The Full Federal Court largely upheld the trial decision. Hytera Communications applied for special leave to appeal to the High Court, but that application was refused in April 2025.

The Full Federal Court's decision is now the final word on these issues — and it contains several important principles that every tech business should understand.

The Key Lessons for Businesses

1. Evolved Software Can Be Protected

The principle: If your software has evolved over time — with new features added, bugs fixed, and improvements made — the evolved version can be protected by copyright even if the original version (which may have been copied) is not the one you sue over.

In plain English: You don't have to sue over the exact version of the code that was copied. If someone copied your code and you improved it, the improved version is still protected.

Why this matters: Many software companies develop products over multiple versions. If a competitor copies an early version but you've since released v2.0 or v3.0, you can still sue for infringement of the later versions. This gives you much more flexibility in enforcing your rights.

2. Look at the Big Picture, Not Individual Snippets

The principle: When deciding whether copyright has been infringed, courts look at whether the totality of the copied code is a substantial part of the original — not whether individual snippets are substantial.

In plain English: Even if no single piece of copied code is large enough to be "substantial" on its own, the court will look at all the copied code together. If the total amount copied is substantial, infringement is established.

Why this matters: This is a strategic consideration for both plaintiffs and defendants. How you characterise the copied material matters. If you're the plaintiff, frame your claim around the overall copied portion. If you're the defendant, individual snippets might not look problematic, but the total might be.

3. Creative Contribution Matters, Not Just Function

The principle: Whether code is a "substantial part" depends on its creative and intellectual contribution to the code's expression — not on whether the code is functionally important to the device's operation.

In plain English: Even code that seems "small" or "simple" can be protected if it involves creative choices. Conversely, code that is functionally important isn't automatically a "substantial part" just because of its importance.

Why this matters: This means that configuration code, setup routines, and even seemingly trivial code can be protected if it involves creative decisions about structure, sequencing, or choice of commands. Don't assume that "small" code isn't worth protecting.

4. Structure, Choice, and Sequencing Are Key

The principle: Courts look at the structure of the code and the choice and sequencing of commands when assessing substantiality.

In plain English: Two pieces of code that do the same thing can still be different if they're structured differently or use different commands. The "look and feel" of the code matters, not just what it does.

Why this matters: This provides a nuanced framework for analysing software similarity. It's not just about whether two programs produce the same output — it's about whether the code itself is substantially similar.

5. Destroying Evidence Backfires

The principle: When a party destroys evidence, courts can draw adverse inferences — meaning they can assume the missing evidence would have been unfavourable to that party.

In plain English: If you delete evidence because you think it will hurt your case, the court may assume it does hurt your case.

Why this matters: This sends a clear message to litigants: don't delete evidence. Document retention policies are critical in IP disputes. If you're involved in a dispute, preserve all relevant code, documentation, and communications.

Strategic Takeaways for Tech Companies

For IP Owners (Like Motorola Solutions)

Characterise your works carefully. Decide whether to sue over the original version or an evolved version. Each has different strategic advantages.
Document your development process. Keep records showing the creative effort invested in each version of your software. This will help prove originality and substantiality.
Think about the totality. Frame your claims around the overall copied portion, not individual snippets. This strengthens your infringement argument.
Emphasise creative contribution. In litigation, focus on the creative and intellectual effort in your code's structure, choice, and sequencing — not just its functionality.
Build robust document retention policies. Make sure your team knows not to delete code or documentation during disputes.

For Alleged Infringers (Like Hytera Communications)

Know your source code. Be able to demonstrate the origin of all code in your products. If an engineer joins from another company, ensure they haven't brought any proprietary code with them.
Hire carefully. Engineers who bring code from previous employers create massive liability for their new employer. Conduct IP due diligence when hiring.
Don't delete evidence. If you're involved in a dispute, preserve all relevant code, documentation, and communications. Deleting evidence will be met with adverse inferences.
Maintain independent development records. If your code was developed independently, keep clear records showing the development process. This is your best defence against infringement claims.
Conduct regular code audits. Regularly review your codebase for potential IP risks, especially if you've hired engineers from competitors.

For Both Sides

Expert evidence is crucial. Software copyright cases require technical experts to explain code similarity to the court. Choose your experts carefully.
Comparison methodology matters. How you compare code — side-by-side, automated tools, expert analysis — can significantly affect the outcome.
Jurisdictional issues are complex. Copying that occurs offshore may still be actionable in Australia if infringing products are sold here.
Consider settlement. Software copyright cases are factually complex, expensive, and uncertain. Settlement may be the best outcome for both sides.

The Patent Side of the Story

Motorola also claimed patent infringement, and the Full Federal Court found that Hytera infringed one of Motorola's patents.

The Court affirmed that computer-implemented inventions must be an "advance in computer technology" to be patentable (at the time). Motorola Solutions' patents were valid because they improved the scanning time and synchronisation of two-way radio technology — a clear technical advance.

Note: The patent test for computer-implemented inventions has since been refined by the Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2024] FCAFC 131 decision (see our separate article on that topic). ETA: The Aristocrat test is now more favourable to software patents, but Motorola Solutions' patents were valid under both tests.

What This Case Means for the Industry

For Software Companies

This case demonstrates that Australian courts can deal with complex technical facts, even when evidence has been deleted and code has been transformed. It provides a template for analysing software copyright infringement in difficult factual scenarios.

For the Gaming Industry

Similar issues arise in video game development, where modders, reskins, and asset copying are common. The principles from this case are relevant to game developers dealing with IP disputes.

For the Telecom Industry

As the case itself involved digital mobile radio technology, it's particularly relevant for telecom companies dealing with firmware and embedded software disputes.

For All Tech Companies

The case reinforces the importance of:

Source code provenance — knowing where your code comes from
Document retention — preserving evidence during disputes
Independent development records — proving your code was developed independently
Expert evidence — having technical experts who can explain complex issues to courts

The Bottom Line

The Motorola v Hytera case is a masterclass in software copyright litigation. It shows that:

Australian courts can handle complex technical disputes even when the facts are messy
How you frame your claims matters — characterise your works carefully
The totality of copied code is what counts — not individual snippets
Creative contribution is the key test — not functional importance
Don't delete evidence — it will backfire

For tech businesses in Australia, this case provides valuable guidance on how copyright infringement is analysed in software disputes. Whether you're enforcing your rights or defending against a claim, understanding these principles will help you navigate the complex world of software IP.

This article is for general information only and does not constitute legal advice. If you have questions about software copyright protection or enforcement for your business, consult a qualified intellectual property lawyer.