Hytera v Motorola 2: the substantial part appeal
Motorola has won its appeal alleging Hytera had infringed its copyright in the source code for its digital mobile radios.
Previously, the Full Court (Beach, O’Bryan and Rofe JJ) had ruled that the trial Judge had applied the wrong test in assessing whether the Hytera software reproduced a substantial part of Motorola’s copyright. The Court, however, had left for a second hearing the assessment of ‘substantial part’ when the correct test was applied. The Court has now hand down its judgment, finding that Hytera did infringe.
On this part of the case, the Full Court concluded:
>[379] we are satisfied that Hytera infringed Motorola’s Australian copyright in the ‘Release 1’ version of its computer source code for the firmware in its DMR devices by, first, importing into Australia Hytera DMRs containing firmware which was an adaptation of a substantial part of Motorola’s source code in each of the Motorola Works and, second, making that firmware available for download in Australia from its website portal.
Understanding why that conclusion was reached will require more time and consideration. Nonetheless, it appears that Motorola succeeded on all alleged infringements.
The Full Court appears to have stepped carefully around the role, if any, of animus furandi but considered that factor “reinforced” the Court’s conclusion.
Hytera Communications Corporation Ltd v Motorola Solutions Inc (No 2) [2026] FCAFC 122
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