Delhi High Court
Microsoft Corporation & Ors. vs Mr. Manish Poddar & Anr. on 18 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 15.05.2017
Judgment delivered on: 18.05.2017
+ CS (OS) 1100/2009
MICROSOFT CORPORATION & ORS. ..... Plaintiffs
Through Mr. Munish Mehra, Ms Arundhati
Gopal, Advocates.
Versus
MR. MANISH PODDAR & ANR. ..... Defendants
Through None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1. The present suit has been filed by the plaintiffs against the defendants
for permanent injunction restraining infringement of copyright, delivery up,
rendition of accounts of profits as also damages and cost of proceedings.
2. The Plaintiff No.1, Microsoft Corporation is a company orgaised and
existing under the laws of State of Washington, USA and is stated to be the
owner of copyright in various software products including Microsoft
Windows Operating Systems, Microsoft Office, and Microsoft Windows
Server Systems etc. The Plaintiff No.2, Microsoft Corporation India Private
Limited is the wholly owned marketing subsidiary of the Plaintiff No.1. The
Plaintiff No.3, Adobe Systems Incorporated, is a company organized and
existing under the laws of state of Delaware, USA and is stated to be the
owner of copyright in various computer software programmes including
Adobe Photoshop, Acrobat, and Illustrator etc. The Plaintiff No. 4, Adobe
Systems India Pvt. Ltd. is a marketing subsidiary of the Plaintiff No.3. The
Plaintiff No. 5, Parametric Technology Corporation, is a company organized
and existing under the laws of the State of Massachusetts, USA and is stated
to be the owner of copyright in various computer software applications
including the Pro/Engineer family of 3D design software. The Plaintiff No.
6, Parametric Tech (India) Private Ltd. is a marketing subsidiary of the
Plaintiff No. 5. The Plaintiff No. 7, Corel Corporation is a company
organized under the Canada Business Corporations Act, 1985 and is stated to
be the owner of copyright in various software applications including
WorldPerfect Office Suit, WinZip and Corel Paint Shop Pro etc. The
Plaintiff No.8, Siemens Product Lifecycle Management Software Inc. is a
company organized and existing under the laws of the State of Missouri,
USA and is stated to be the owner of copyright in various computer software
applications including NX Nastran, Solid Edge, Tecnomatix and Teamcenter
etc. The Plaintiff No.9, Dassault Systems SolidWorks Corp., is a company
orgainsed and existing under the laws of United States of America and is
stated to be the owner of copyright in various software applications including
Catia, Delmia, Enovia, 3DIVA etc.
3. The Plaintiff No.1, Plaintiff No.3, Plaintiff No.5, Plaintiff No.7, Plaintiff
No.8 and Plaintiff No.9 are the owners of copyright in their respective
software programs developed and marketed by them. They are stated to be
the members of the Business Software Alliance (BSA), a non- profit
association dedicated, interalia, to combat piracy in various parts of the
world. The Plaintiff No.2, Plaintiff No. 4, and Plaintiff No. 6 market the
software products of the Plaintiff No.1, Plaintiff No.3 and Plaintiff No.5 in
India respectively. The plaintiff claims to have markets globally and is the
biggest software publisher for personal and business computing in the world.
These software programs are "computer programs" within the meaning of
Section 2 (ffc) of The Copyright Act 1957 and are included in the definition
of a „literary work‟ as per Section 2 (o) of The Copyright Act 1957.
The plaintiffs being the owners of copyright in the aforesaid „literary works‟
(computer programs) within the meaning of Section 17 of The Copyright Act
1957, are entitled to all the exclusive rights flowing from such ownership as
set out in Section 14 of The Copyright Act 1957.
3. Defendant No. 2, M/s Powersoft Global Solutions Ltd. is a Business
Technology Software, GIS and Engineering Solutions provider offering
Computer Aided Design (CAD), Computer Aided Manufacturing (CAM)
and Computer Aided Engineering Services and training. Defendant No. 1 is
the CEO of the Defendant No. 2 Company.
4. The Plaintiffs received information that the Defendants are using
pirated/unlicensed copies of the Plaintiff‟s software products on its computer
systems for their business purposes. Plaintiffs became aware that the
defendants are stated to be having 60 computer systems installed at its
premises and are using plaintiffs companies software products including
Microsoft Windows, Microsoft Office, Windows Server, Visual Studio etc
for their business purposes. The plaintiffs checked their own respective
registered user databases and serach revealed that the defendants do not
posses even a single license for the use of software programmes of plantiffs
No. 1, 3, 5 and 7. The defendants were also found to have only 1 license for
the use of Plaintiff No. 8‟s software SolidEdge and 1 license for the use of
Plaintiffs No. 9‟s software SolidWorks Professional 2009.
5. On 29.05.2009, an ex-parte interim injunction had been granted in
favour of the plaintiffs and against the defendants restraining them from
using pirated/unlicensed software titles of plaintiffs companies and
infringing the copyright of the plaintiffs in any manner. The defendants were
also restrained from directly or indirectly reproducing and storing them on
any storage media in any manner so as to infringe the plaintiffs copyright.
6. A local commissioner was appointed to visit the premises of the
defendants without giving pior notice to defendants and to prepare
inventories of all unlicensed/ pirated software of plaintiffs in the computer
system/hard disk or in the Compact Discs/ DVD‟s or any other storage
media of the defendants at their premises and seize only such storage medias,
in the Central Processing Unit or outside the Central Processing Unit, having
unlicensed/pirated software of the plaintiffs.
7. The Local Commissioner in his report has revealed that 43 computer
systems were identified to be containing unlicensed software of plaintiffs out
of total 51 computers system which were installed in the premises of the
defendants. Also the storage media in the side of the CPU‟s were taken out
from the CPU‟s and were seized as per the order of this court and the same
were handed over on superdari to the defendants. Defendnats were able to
produce 1 license for SolidEdge (Plaintiff No. 8‟s software) and 1 license of
SolidWorks (Plaintiff No.9‟s software).
8. Defendants in their written statement stated that they were unaware
that the plaintiffs were the absolute owner of their respective software.
Defendants also stated that the plaintiffs would not suffer any harm due to
the actions of the defendants.
9. Present suit has accordingly been filed praying for permanent
injunction restraining infringement of copyright, delivery up, rendition of
accounts of profits as also damages and cost of proceedings. The Court on
11.01.2017, further allowed the Plaintiff No. 7 to withdraw all its claims
from the present suit and to give up prayer clauses (b), (c) and (d) under
paragraph 54 of the plaint.
10. In the course of proceedings of the suit, on 29.05.2009 an ex-parte
interim injunction was granted in favour of the plaintiff and against the
defendants restraining them from using pirated/unlicensed software titles of
plaintiffs companies and infringing the copyright of the plaintiffs in any
manner. The defendants were also restrained from directly or indirectly
reproducing and storing them on any storage media in any manner so as to
infringe the plaintiffs copyright. Ex-parte injunction dated 29.05.2009 was
made absolute on 09.12.2010.
11. Ex-parte evidence by way of affidavit of PW1 (Constituted Attorney
of plaintiff No. 1, 2, 3, 4, 5, 6 and plaintiff No. 9) has been filed. PW-1 has
reiterated all the averments made in the plaint and has proved various
documents delineated as Ex.PW1/1 to Ex.PW-1/22. Ex.PW- 1/21 being a
photocopy is deexhibited and is read as Mark A.
Ex-parte evidence by way of affidavit of PW2 (Constituted Attorney of
plaintiff No. 8) has been filed. PW-2 has reiterated all the averments made
in the plaint and has proved various documents delineated as Ex.PW2/1 to
Ex.PW-2/4.
Ex-parte evidence by way of affidavit of PW3/A (Anil Nayer) has been filed.
12. The plaintiff has established and proved his case. In view of the
testimony of the witness of the plaintiffs i.e. PW-1, PW-2, PW-3 as also
documentary evidence adduced and proved in the court, the plaintiffs are
entitled to a decree of permanent injunction. It is clear that the defendant‟s
are using pirated/unlicensed software titles of plaintiffs companies and
infringing the copyright of the plaintiffs. This adoption of the copyright of
the plaintiff is fraudulent and has caused loss and damage to its name,
business goodwill and reputation.
13. Accordingly, the suit of the plaintiffs is decreed and by way of
permanent injunction, the Defendants, their principal officers, directors,
agents, franchisees, servants and all other acting for and on their behalf, from
directly or indirectly reproducing/storing/installing and/or using
pirated/unlicensed softwares of the plaintiffs Companies thereby infringing
Copyright in the plaintiffs‟ computer programs/software titles. Prayers No.
„b‟, „c‟ and „d‟ had been deleted vide order dated 11.01.2017.
14. Cost of the suit also be granted in favour of the plaintiffs companies.
Decree sheet be drawn. File be consigned to record room.
INDERMEET KAUR, J
MAY 18, 2017
