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Software program Piracy – Indian Courtroom Orders for Damages
The latest resolution of the Delhi Excessive Courtroom within the case – Microsoft Company vs. Yogesh Papat & Anr., pertaining to “Piracy of Software program”, has as soon as once more established the resolve of the Indian Judiciary to take-up Mental Property issues upfront. IP theft, which until lately was perceived as a petty white-collar crime owing to its financial milieu, lastly appears to have come out of the darkish shadows of archetypal prison offences, which had prejudiced the mindset of Indian judicial and enforcement companies (the prevalent notion being that the prison offences are far more felonious and aberrant as in comparison with their IP counterparts, an argument to which some folks nonetheless would possibly subscribe).
This case considerations the infringement of copyright within the software program and notably, the interpretation of Sec. 51 and 55 of the Indian Copyright Act, 1957. The Claimant, software program large – Microsoft Company, the registered proprietor of the trademark MICROSOFT, filed a go well with praying for an order of everlasting injunction restraining the defendants, its administrators, and brokers from copying, promoting, providing on the market, distributing, issuing to the general public, counterfeit/unlicensed model of the software program programmes, in any method, amounting to infringement of their copyright within the mentioned pc programmes and associated manuals and their registered emblems, and likewise restraining the defendants from promoting and distributing any product to which the plaintiffs’ trademark, or any misleading variant thereof have been utilized and additional praying for delivery-up and rendition of accounts of income.
The defendants select to not enter look after being served the discover and have been proceeded ex-parte. The go well with was finally decreed in opposition to the defendants who with out a licence and in absence of any permission of the producers of the software program have been downloading plaintiffs’ software program on the arduous disk of computers being bought by them.
Typically, when the software program is bought, purchaser has a license settlement setting out the phrases for permissible person of the software program, which is contained in a floppy. CD/floppies are handed over to the purchaser and time period of the license settlement permits the usage of the CD’s/floppies, as per situation. Within the current case, as acknowledged earlier, the defendants, with out a license have been loading the software program and on this method have been inflicting monetary loss to the plaintiff.
Courtroom Proceedings – An perception:
The plaintiff led proof by means of affidavits establishing their robust presence within the subject of software program and the possession of pc programmes together with numerous working programs. Proof by means of the ‘certificates of registration’ pertaining to the registration of the trademark ‘Microsoft’ within the title of the plaintiff was additionally put ahead. Additional, direct proof establishing the culpability of the defendants was led by means of an affidavit of an worker of the plaintiff who has bought a pc from the defendants loaded with the pirated software program of the plaintiff, which in flip was authenticated by the examination report of a technical knowledgeable.
The plaintiff additionally filed an affidavit by means of proof of a Chartered Accountant, which introduced on report and proved the interval for which the defendants have been in enterprise and the sale-price of the pc bought by them, based mostly on which an assumptive variety of the full variety of computers bought by the defendant was computed to find out the estimated lack of enterprise to the plaintiff.
These evidences on report established past doubt that the plaintiff was the registered proprietor of the trademark ‘MICROSOFT’ and that the copyright within the pc software program programmes vests within the plaintiff. The evidences additional established arduous disk piracy practiced by the defendants.
Resolution of the Courtroom:
The courtroom approached every of the proof in flip and based mostly on the idea of the sale of 100 computers every year and on the premise of the recognition of the software program upheld the computed lack of revenue to the plaintiff in sum of INR 19.75 lacs and curiosity @ 9% from the date of decree until the date of cost together with the opposite relieves prayed for. With respect to rendition of accounts, the courtroom noticed, “…it could be true that the monetary loss relies on sure assumptions, but it surely can’t be helped for the rationale the defendant has chosen to stay ex-parte. It might be futile to direct the defendants to render accounts given that the defendants have been carrying on enterprise surreptitiously.”
The Hon’ble Courtroom, stating the statement made by Mr. Justice Laddy of the Excessive Courtroom of Justice, Chancery Division within the case Microsoft Company vs. Electrowide Ltd. and Anr., (1997) FSR 580 held that “this constitutes a normal risk to infringe the Copyright within the class of software program.” Within the phrases of Justice Predeep Nandrajog, who presided the case –
“…it stands established that the defendants have infringed the plaintiffs Copyright by making illicit copies of the working programs software program by brazenly copying no matter working system is at present salable.”
Concluding assertion:
One can solely wait to see how this judgment would form the Copyright jurisprudence within the nation. From the above, it’s clear that this judgment has paved the best way for establishing an efficient copyright enforcement regime within the nation, which in flip would function a deterrent to all those that indulge on this ‘all-pervasive’ phenomenon – ‘software program piracy’.
