Delhi High Court - Orders
The Foundry Visionmongers Limited vs Vivishaa Solutions Private Limited & ... on 31 May, 2021
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 248/2021
THE FOUNDRY VISIONMONGERS LIMITED ..... Plaintiff
Through: Mr. Pravin Anand, Advocate with Mr.
Shantanu Sahay, Mr. Rohan Sharma,
Mr. Deepesh Bhardwaj and Mr.
Apoorv Bansal, Advocates.
versus
VIVISHAA SOLUTIONS PRIVATE LIMITED & ANR.
..... Defendants
Through: Ms. Archana Sahadeva, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 31.05.2021 [VIA VIDEO CONFERENCING] I.A. 6895/2021 (for exemption) 1. Exemption allowed, subject to just exceptions. 2. The application stands disposed of. CS(COMM) 248/2021 3. Let the plaint be registered as a suit.
4. Issue summons. Ms. Archana Sahadeva, learned counsel appearing on advance notice, accepts summons on behalf of the Defendants. Written statements to be filed by the Defendants within 30 days from today. Along with the written statements, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written CS(COMM) 248/2021 Page 1 of 6 statements shall not be taken on record.
5. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within these timelines.
6. List before the Joint Registrar for marking of exhibits on 30th July, 2021. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
7. List before Court on 20th September, 2021 for framing of issues thereafter.
I.A. 6893/2021 (u/O XI Rule 1 (4) r/w Section 151 of the CPC, 1908 for filing additional documents)
8. This is an application seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (in short 'Commercial Courts Act').
9. The Plaintiff, if they wish to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act.
10. Accordingly, the application stands disposed of.
I.A. 6894/2021 (u/S 149 r/w Section 151 of the CPC, 1908 for exemption in filing the Court fees and One Time Process fees)
11. The present application under Section 151 of the Code of Civil Procedure, 1908 (in short 'CPC') on behalf of the Plaintiff seeks exemption in filing the court fees and one time process fees.
CS(COMM) 248/2021 Page 2 of 612. The application is allowed, subject to the Plaintiff filing court fees and one time process fees within two weeks from the day the lockdown restrictions imposed by the Government of NCT of Delhi are lifted and the facilities for issuance of court fees stamps is resumed.
13. The application stands disposed of.
I.A. 6892/2021 (u/O XXXIX Rules 1 and 2 r/w Section 151 of the CPC)
14. The Plaintiff has filed the present application for permanent injunction seeking restraining of the infringement of copyright, delivery, rendition of accounts of profits, and damages, in respect of the Plaintiff's software programs NUKE and NUKE X.
15. The case as set out in the plaint is that the Plaintiff is the owner of the copyright in its software programmes including "NUKE", "NUKE X", "NUKE STUDIO" and "NUKE RENDER". The software programs and all user instruction manuals included with it are "literary works" capable of protection within the meaning of the Copyright Act, 1957 and the same have also been created / developed and written for the Plaintiff by its employees, during the course of their employment with the Plaintiff. The Plaintiff is the "first owner" of the copyright as defined under the Copyright Act, 1957 in respect of the aforesaid software. NUKE is Plaintiff's flagship software programme for rendering visual effects. The said software is a powerful compositing product that delivers unparalleled speed and a first-class feature set that is unrivalled in the desktop market. The software provides state of the art tools designed to streamline day-to-day workflow and ensure highest quality visual effects.
CS(COMM) 248/2021 Page 3 of 616. The Plaintiff has spent and continues to spend millions of U.S. dollars annually in research and development of new software products. Due to the highly sought-after nature of the Plaintiff's software programs, software piracy has always been a concern. The Plaintiff's software programs are licensed through internet delivery, during which process, the customer agrees to the terms of an End-User License Agreement (EULA) prior to software installation for the requisite number of computers on which the software has been loaded/installed for concurrent use at its premises. The Plaintiff maintains an extensive and frequently updated database of all its licensees. In order to keep piracy in check, a security mechanism is used by the Plaintiff, colloquially known as "phone home" technology, which is built into the Plaintiff' software, which verifies whether the Plaintiff's software is being used in accordance with the terms of the EULA.
17. Mr. Anand, learned counsel for the Plaintiff submits that as per the said anti-piracy tool, the Plaintiff has recorded infringement hits of the use of its software by the Defendants. He draws the attention of this Court to the table extracted in para 39, wherein the instances of infringements have been recorded. There are a total of 2235 infringement hits generated against the Defendants. He further submits that the said infringements hits link to the MAC and IP addresses of the Defendants. In light of this fact, Mr. Anand contends that Defendants have been found to be knowingly using pirated/unauthorised versions of the Plaintiff's NUKE and NUKE X software programs, rather than procuring genuine licenses. They have thereby infringed the Plaintiff's copyright subsisting in the aforesaid software programs.
18. Ms. Archana Sahadeva, learned counsel for the Defendants who CS(COMM) 248/2021 Page 4 of 6 appears on advance notice, raises an objection with respect to the territorial jurisdiction of this Court. She states that she would like to file a written statement to the suit and bring on record certain germane facts to demonstrate that the suit is not maintainable before this court. She further states that the Plaintiff has not made a true and correct disclosure in the suit, as it has concealed the fact that the Plaintiff and Defendants have entered into agreement for the sale and purchase of two licenses of NUKE X software for an amount of Rs.7,53,123/-. Against the said payment, the Defendant has, in fact, made a payment of Rs. 5,02,082/-. She submits that due to the prevailing situation on account of the COVID-19 pandemic, the remaining amount could not be paid. She states that despite the aforesaid payment, the Plaintiff has not issued license to the Defendant. It is urged that Plaintiff should at least issue one licence against the payment already made. Further, without prejudice to the rights of the Defendants, Ms. Sahadeva, on instructions, states that Defendants undertake to not use any unauthorised version of the Plaintiff's softwares.
19. In response thereto, Mr. Anand draws the attention of this Court to para 36 of the Plaint to submit that complete disclosure of relevant facts has indeed been made by the Plaintiff. He further submits that the infringement hits generated on the anti-piracy tool are indicative of the fact that the Defendants have installed infringing unauthorised pirated version of the software in 51 machines. Thus, the Defendants should be injuncted from using unauthorised software of the Plaintiff.
20. In view of the facts noted above, the Plaintiff has established a prima facie case in its favour. The balance of convenience also lies in favour of the Plaintiff and irreparable loss would be caused to it in case an ex-parte CS(COMM) 248/2021 Page 5 of 6 interim injunction is not granted. Accordingly, taking the statement of Ms. Sahadeva on record and binding the Defendants to the same, it is directed that till the next date of hearing, the Defendants, their principal officers, directors, agents, franchisees, servants and all others persons acting for and on their behalf, are restrained from directly or indirectly using any kind of software, which is pirated/unlicensed/unauthorised software program of the Plaintiff or reproducing and distributing any pirated/unlicensed/unauthorized software of the Plaintiff in contravention of the terms of the EULA or infringing in any other manner or causing or enabling or assisting others to infringe the copyrights of the Plaintiff's softwares including NUKE and NUKE X.
21. At the request of the counsels, the parties are referred to the Delhi High Court Mediation and Conciliation Centre. The authorised representatives of both the parties shall appear before the learned Mediator through video-conferencing mechanism on 4th June, 2021. The Mediation Centre is requested to appoint Mr. Sudhanshu Batra as the Senior Mediator in the present case.
22. List before the Joint Registrar on 30th July, 2021.
23. List before the Court on 20th September, 2021.
SANJEEV NARULA, J MAY 31, 2021 nd CS(COMM) 248/2021 Page 6 of 6