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The Foundry Visionmongers Limited vs Plangle Studio Private Limited & Anr on 25 January, 2022

Author: Amit Bansal

Bench: Amit Bansal

                          $~17
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      CS(COMM) 61/2022

                                 THE FOUNDRY VISIONMONGERS LIMITED ..... Plaintiff
                                              Through: Mr. Pravin Anand with Mr. Shantanu
                                                       Sahay, Mr. Rohan Sharma, Mr.
                                                       Deepesh Bhardwaj, Ms. Imon Roy
                                                       and Mr. Apoorv Bansal, Advocates.

                                                    versus

                                 PLANGLE STUDIO PRIVATE LIMITED & ANR.
                                                                     ..... Defendants
                                              Through: None.

                               CORAM:
                               HON'BLE MR. JUSTICE AMIT BANSAL
                                       ORDER

                          %            25.01.2022
                          [VIA VIDEO CONFERENCING]
                          I.A. No. 1346/2022 (for exemption)

1. Subject to the plaintiffs filing legible and clear copies within four weeks of any dim or illegible documents on which they may seek to place reliance, exemption is granted for the present.

2. The application is disposed of.

I.A. No. 1345/2022 (by the plaintiff under Order XI Rule 1(4) read with Section 151 CPC seeking leave to file additional documents)

3. For the reasons stated in the application, the application is allowed, subject to the plaintiff filing the additional documents positively within a period of 30 days from today.

4. The application is disposed of.

I.A. 1347/2022 (by the plaintiff under Section 12 A of Commercial Courts Act, 2015 read with Section 151 of CPC seeking exemption from pre-institution mediation)

5. For the reasons states in the application, the same is allowed and the Plaintiff is exempted from instituting pre-institution mediation.

6. The application is disposed of.

CS (COMM) 61/2022

7. The plaint be registered as a suit.

8. The present suit has been filed by the plaintiffs with the following prayers:-

"a. A decree of permanent injunction restraining the Defendants, their principal officers, directors, agents, franchisees, servants and all others acting for and on their behalf at the Defendants' premises, from directly or indirectly using for any kind of computer related activities or otherwise in any other manner, any pirated/unlicensed/unauthorized software programs of the Plaintiff or reproducing and distributing any pirated/unlicensed/unauthorized software of the Plaintiff in contravention of the terms of the End User License Agreement(s) (EULA) or infringing in any other manner or causing or enabling or assisting others to infringe the copyrights of the Plaintiff including NUKE and NUKE X software and its various versions or any other software programs developed by the Plaintiff in any manner that may amount to infringement of the Plaintiff's copyright subsisting in its software programs and software related documentation; and Signature Not Verified Signed By:SAKSHI CS(COMM) 61/2022 Page 2 of 7 RAMOLA Signing Date:01.27.2022 22:02:18 b. An order for delivery-up to Plaintiff, of all the unlicensed copies of Plaintiff's software, and/or articles/software, the duplicating equipment used in the copying of Plaintiff's software, including computers, compact disc writers, stampers, burners, "plates", hard disks, diskettes, digital footprint, caches, property files, packaging and advertising material, labels, stationery articles and all other infringing material under Section 58 of the Copyright Act, 1957. c. an order for rendition of accounts of profit illegally earned by Defendants by reason of infringement of Plaintiff's copyright, including conversion damages which are presently indeterminate, and a decree be passed against Defendants in the sum of the amount so ascertained.

d. An order for damages of INR 2,00,01,000/- to be paid by Defendants in total on account of infringement of Plaintiff's copyright and also for loss of sales and reputation;

e. An order for costs in these proceedings;

Pass any further orders this Hon'ble Court deems fit considering the facts and circumstances of the present case."

9. Let the plaint be registered as a suit.

10. Summons be issued to the defendants through all permissible modes. The summons shall state that the written statement(s) shall be filed by the defendants within thirty days from the date of the receipt of the summons. Along with the written statement(s), the defendants shall also file an affidavit of admission/denial of the documents of the plaintiff, without which the written statement(s) shall not be taken on record.

11. Liberty is given to the plaintiff to file replication(s), if any, within fifteen days from the receipt of the written statement(s). Along with the replication(s) filed by the plaintiff, an affidavit of admission/denial of the documents of the defendants, be filed by the plaintiff.

12. The parties shall file all original documents in support of their respective claims along with their respective pleadings. In case parties are placing reliance on a document, which is not in their power and possession, its detail and source shall be mentioned in the list of reliance, which shall be also filed with the pleadings.

13. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

14. List before the Joint Registrar on 31stMarch, 2022 for completion of service and pleadings.

15. List before the Hon'ble Court on 15th July 2022 for framing of issues. I.A. 1344/2022 (by the plaintiff under Order XXXIX Rule 1 & 2 read with Section 151 CPC for ad-interim temporary injunction)

16. 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". 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 work flow and ensure highest quality visual effects. 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 (hereinafter Signature Not Verified Signed By:SAKSHI CS(COMM) 61/2022 Page 4 of 7 RAMOLA Signing Date:01.27.2022 22:02:18 "Copyright Act"). 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 in respect of the aforesaid software.

17. It is stated that the Plaintiff has spent and continues to spend millions of U.S. dollars annually in research and development of new software products. 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 [hereinafter "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. Due to the highly sought-after nature of the Plaintiff's software programs, software piracy has always been a concern. 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's software, which verifies whether the Plaintiff's software is being used in accordance with the terms of the EULA.

18. Mr. Pravin Anand, learned counsel for the Plaintiff submits that as per the said anti-piracy tool, the Plaintiff has recorded infringement hits of the illicit use of its software by the Defendants. He draws the attention of this Court to the table extracted in para 37 of the Plaint, wherein the instances of infringements have been recorded. There are a total of 468 infringement hits generated against at least 14 computer systems of the Defendants. In light of this fact, Mr. Anand contends that Defendants have been found to be Signature Not Verified Signed By:SAKSHI CS(COMM) 61/2022 Page 5 of 7 RAMOLA Signing Date:01.27.2022 22:02:18 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. The learned counsel has also referred to various orders passed by Co-ordinate Benches of this Court in their favour, at pages 78-186 of the documents filed by the Plaintiff.

19. Issue notice.

20. Notice be issued to the defendants through all permissible modes.

21. Reply be filed within four weeks. Rejoinder thereto, if any, be filed two weeks thereafter.

22. In view of the submissions made and the material placed on record, 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 ad-interim injunction is not granted. Accordingly, till the next date of hearing, it is directed that the Defendants, their principal officers, directors, agents, franchisees, servants and all others acting for and on their behalf at Defendants' premises are: -

i. Restrained from directly or indirectly using for any kind of computer related activities or otherwise in any other manner, any pirated/unlicensed/unauthorized software programs of the Plaintiffs or reproducing and distributing any pirated/unlicensed/unauthorized software of the Plaintiffs in contravention of the terms of the End User License Agreement(s) or infringing in any other manner or causing or enabling or assisting others to infringe the copyrights of the Plaintiffs including "NUKE" and "NUKE X" software and its various Signature Not Verified Signed By:SAKSHI CS(COMM) 61/2022 Page 6 of 7 RAMOLA Signing Date:01.27.2022 22:02:18 versions or any other software programs developed by the Plaintiff in any manner that may amount to infringement of the Plaintiff's copyright subsisting in its software programs and software related documentation, and ii. Restrained from directly or indirectly formatting the computer systems and/or erasing any data, log files, installations, etc. pertaining to assisting others to infringe the copyrights of the Plaintiff subsisting in its software programs and software related documentation including "NUKE" and "NUKE X" software and its various versions or any other software program developed by the Plaintiff.

23. List before the Joint Registrar on 31stMarch, 2022.

24. List before the Hon'ble Court on 15th July 2022.

25. Compliance of Order XXXIX Rule 3 CPC be complied within 7 days.

26. The order be uploaded on the website forthwith.

AMIT BANSAL, J.

JANUARY 25, 2022 at Signature Not Verified Signed By:SAKSHI CS(COMM) 61/2022 Page 7 of 7 RAMOLA Signing Date:01.27.2022 22:02:18