Microsoft Corporation & Anr v. Mr. Prem Tiwari & Anr

MANMOHAN SINGH, J.

¶1The plaintiffs have filed the above-mentioned suit for permanent injunction restraining infringement of copyrights, delivery up, rendition of accounts of profit and damages etc.

¶2As per the plaint, plaintiff No.1, Microsoft Corporation is the Company organized and existing under the laws of the State of

Washington, USA. Plaintiff No.2, Microsoft Corporation India Private Limited is the wholly owned marketing subsidiary of plaintiff No.1, having its office at Eros Corporate Towers, 5th Floor, Nehru Place, New Delhi-110019 and is an entity incorporated and registered under the Indian Companies Act, 1956. Plaintiff No.2 was set up in the year 1989 to provide marketing, promotion, anti-piracy awareness campaigns and actions and channel development support to plaintiff No.1 and/or its affiliates. Additionally, the products of plaintiff No.1 are distributed in New Delhi through various authorized distributors.

¶3The case of the plaintiffs is that plaintiff No.1 was set up in the year 1975 and is the biggest software publisher for personal and business computing in the world. It engages in the development, manufacture, licensing, and support of a range of software products for various computing devices. The plaintiffs' popular software products include the most widely used operating system software, Microsoft Windows (various versions) and application software such as Microsoft Office (various versions) and Visual Studio (various versions).

¶4Apart from computer software programmes, the plaintiffs also manufacture a large range of computer peripherals (hardware). The plaintiffs have established their reputation for technological expertise in hardware by developing and launching a series of successful devices

including the ergonomically designed Mouse and Keyboard for the last more than two decades.

¶5It is stated in the plaint that the plaintiffs' computer programs are "works" that have been first published in the USA. These programs have been created by employees of plaintiff No.1, for plaintiff No.1. Under the US Copyright Law US Code Title 17, Section 201 (b), the copyright in a work created by an employee belongs to the employer under the 'Work for Hire' doctrine. Both, the computer programme, as well as the supplementary User Instructions and Manuals are 'original literary works' as contemplated under Section 2 (o) and Section 13 (1) (a) of the Copyright Act, 1957. The plaintiff No.1 is the owner of the copyright in aforesaid works.

¶6As India and the USA are signatories to both the Universal Copyright Convention as well as the Berne Convention, protection is afforded to the plaintiff No.1's works since they are created by authors or member countries and originate from and are first published in the said member countries. This is by virtue of section 40 of the Copyright Act, 1957 read with the International Copyright Order, 1999.

¶7The plaintiff No.1 being the owner of the copyright in the aforesaid literary works within the meaning of the proviso to Section 17 of the Copyright Act, 1957 is entitled to all the exclusive rights flowing from

such ownership as set out in Section 14 of the said Act.

¶8The reproduction in any material form, including publication, performance, dissemination, translation, adaptation, the use, distribution, sale, offer for sale of any of the above material without the plaintiffs' consent, would amount to infringement of the plaintiffs' copyright as contemplated under Section 51 of the Copyright Act, 1957. These acts of infringement are further divided into two categories namely: "a 'primary act' of infringement committed by a person who reproduced the computer programs in a material form or publishes, translates or adapts the said computer program; and a secondary act of infringement which is committed by a person who makes for sale or hire or lets for hire or by way of trade, displays or offers for sale or hire or distributes for the purposes of trade, infringing copies of the computer program."

¶9The plaintiffs have been constantly protecting their copyrights and have, from time to time, prosecuted several infringing parties in India. Copies of the orders granted by this Court have been filed.

¶10As per the plaintiffs, their software products can be purchased by the consumers, inter alia, in one of the following ways, depending upon their personal and professional requirements and needs:

(a) Retail Purchase: A consumer can acquire a Microsoft product via off-the-shelf retail purchase from an authorized reseller, which comes as individually fully-packaged boxed products.

(b) With a New PC: A consumer can acquire a Microsoft product, pre-installed on a purchased new PC.

(c) Volume License: A consumer company can acquire a Microsoft Product under a Volume Licenses from an Authorized Reseller.

¶11As per the plaint, defendant No.2, M/s Nitya Infotech, located at shop No.3, Mirani Nagar, Valji Ladha Road, Mulund (West), Mumbai-400080 and also trading at Thane (W) and New Mumbai, is a business entity engaged in marking and selling computer hardware including branded computers and peripherals. Defendant No.1 appears to be the proprietor of the said defendant No.2-firm.

¶12The plaintiffs' case against the defendants is that in the month of October, 2007, the plaintiffs received information that the defendants were infringing the plaintiffs' copyrights and other intellectual property rights by carrying on the business of unauthorized Hard Disk Loading of the plaintiffs' software programmes on to the branded computers sold by them to their customers. The said unlicensed software, naturally, were not accompanied by any original Certificate of Authenticity (COA) label, Holographic Software Installation CD/DVD, User Instructions Manual/ Booklet and genuine copy of EULA. On 31.10.2007 the laptop computer system as purchased from the defendants was examined by the plaintiffs' technical expert, Mr. Gurjot Singh, who took printouts (screen shots) of

the directory of its hard disk, in which he found the software programmes of the plaintiffs present on that laptop computer system as sold by the defendants, without any authorization. He opined that the software programmes of the plaintiffs which were loaded onto the hard drive of the laptop computer system as purchased from the defendants were unlicensed and/or pirated versions of the plaintiffs' software programmes.

¶13Along with the suit, the plaintiffs also filed an application for interim injunction being I.A. No.1314/2008. After hearing the plaintiffs, this Court vide order dated 05.02.2008 granted ex parte ad-interim injunction order against the defendants thereby restraining them from re-producing, selling or distributing the two programmes, MS Windows XP 2002 Professional Version and MS Office 2002 or any other programmes in which the plaintiffs have the copyright, without their authority or licence.

¶14After the service of summons and notice of the application, it appears from the record that defendant No.1 filed an application under Order VII, Rule 11 CPC being I.A. No.5031/2008, for rejection of the plaint, mainly, on the ground that the plaint does not disclose any cause of action against defendant No.1, as defendant No.1 is not involved in any kind of copyright violation of licensed software. It was also stated in the application that there is no transaction between defendant No.1 and

defendant No.2, as both the entities are different. The business of defendant No.2 is not being run by defendant No.1. No written statement was filed by the defendant No.1, rather the defendant No.1 stopped appearing before the Court with effect from 10.11.2008. Therefore, the defendants were proceeded ex parte vide order dated 10.02.2009.

¶15The plaintiffs were given time to file the affidavit(s) in terms of the ex parte evidence. The plaintiffs in their ex parte evidence examined PW-1 Mr. Achuthan Sreekumar who has filed his affidavit Ex.PW1/A and proved the following documents:- Ex.P1 & Notarized copy of the Letter of Authority and Power of Ex.P2 Attorney issued in his favour by the plaintiffs.

Ex.P3 & Notarized copy of the Power of Attorney and Letter of Ex.P4 Authority executed by the plaintiffs in favour of

Mr. Anand Banerjee.

Ex.P5 to Court certified copies of the Original Copyright Ex.P15 Registration Certificates for the software programmes,

such as Microsoft Windows 2000 etc.

¶16I have heard the learned counsel for the plaintiffs and have also gone through the affidavit in ex parte evidence as well as the documents placed on the record. In their evidence, the plaintiffs have, in fact, proved the facts stated in the plaint and have also exhibited the relevant documents in support of their case. The evidence filed by the plaintiffs has gone unrebutted as no cross-examination of the plaintiffs' witness was carried out. Therefore, the statement made by the plaintiffs is accepted as

correct deposition. Under these facts and circumstances, the plaintiffs are entitled to a decree for permanent injunction. Hence, the suit of the plaintiffs is decreed in terms of paragraph-38(a) & (b) of the plaint. As far as the relief of damages and rendition of accounts are concerned, I am of the view that in view of the orders earlier passed in favour of the plaintiffs, they are entitled to the damages to the tune of Rs.2 lac in their favour. The plaintiffs are also entitled to the cost of the suit. Ordered accordingly. Decree be drawn accordingly. The suit and the pending applications are disposed of.

MANMOHAN SINGH, J. OCTOBER 31, 2011 ka

* HIGH COURT OF DELHI: NEW DELHI + C.S.(OS) No.203/2008 Judgment Reserved on: 24.10.2011 % Judgment Pronounced on: 31.10.2011 MICROSOFT CORPORATION & ANR ..... Plaintiffs Through Mr. Pravin Anand, Adv. with Ms. Jaya Negi, Adv. Versus PREM TIWARI & ANR ..... Defendants Through Defendants already ex parte. CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest?