Delhi High Court
Microsoft Corporation & Anr. vs Prem Tiwari & Anr. on 31 October, 2011
Author: Manmohan Singh
* 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?
MANMOHAN SINGH, J.
1. The plaintiffs have filed the above-mentioned suit for
permanent injunction restraining infringement of copyrights, delivery up,
rendition of accounts of profit and damages etc.
2. As 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, 5 th 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.
3. The 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).
4. Apart 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.
5. It 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.
6. As 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.
7. The 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.
8. The 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."
9. The 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.
10. As 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.
11. As 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.
12. The 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.
13. Along 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.
14. After 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.
15. The 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.
16. I 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
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