Delhi High Court
Microsoft Corporation & Anr vs M/S Ajel Technologies Pvt Ltd & Anr on 28 October, 2015
Author: Manmohan Singh
Bench: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 28th October, 2015
+ CS (OS) No. 426/2012
MICROSOFT CORPORATION & ANR ..... Plaintiffs
Through Mr.Amlan J. Ray, Adv.
versus
M/S AJEL TECHNOLOGIES PVT LTD & ANR ..... Defendants
Through Defendants are ex parte.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The plaintiffs have filed the present suit for permanent injunction restraining infringement of copyrights, delivery up, rendition of accounts of profits, damages etc. against the defendants.
2. The suit along with interim application was listed before Court on 22nd February, 2012. After hearing, detailed ex-parte ad interim injunction order was passed thereby restraining the defendants from directly or indirectly using for any kind of computer related activities or otherwise in any other manner, any pirated/counterfeit/unlicensed software of the plaintiffs or reproducing, storing and installing any pirated/counterfeit/unlicensed 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 in their computer programs and software titles.
3. Despite service, neither appearance was filed on behalf of the defendants nor the written statement was filed and consequently, the defendants were proceeded ex parte vide order dated 29th April, 2014.
CS (OS) No.426/2012 Page 1 of 7By the same order, interim order dated 22nd February, 2012 was made absolute.
4. Brief facts of the case as per plaint are that the plaintiff No. 1, Microsoft Corporation is a Company organized and existing under the laws of the State of Washington, USA, having its principal office at One Microsoft Way, Redmond, WA 98052-6399, USA. Plaintiff No. 2, Microsoft Corporation India Private Ltd. is a wholly owned marketing subsidiary of the plaintiff No. 1 and was set up in the year 1989 to provide marketing, promotion, anti-piracy awareness campaigns and actions and channel development support to the plaintiff No.1.
5. 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 is engaged in the development, manufacture, licensing and support of a range of software products for various computing devices. The software products of plaintiff No.1 include operating systems for servers, personal computers (PC) and intelligent devices; server applications for distributed computing environments; information worker productivity applications; and software developments tools. Plaintiff No.1 also develops software for mobile products/devices, PC games, video game console (Xbox), video games and engages in online business through various internet portals (MSN etc.)
6. Some of the plaintiff No.1's popular software products include the most widely used operating system software, Microsoft Windows Operating Systems (various versions), and application software such as Microsoft Office (various versions) and development tools like Visual Studio, Visual C++ (various versions). These softwares are today installed and used on millions of computers all over the world, including India. Other popular software products of plaintiff No.1 include Microsoft Windows Server System, Microsoft Publisher, CS (OS) No.426/2012 Page 2 of 7 Microsoft Visio, Microsoft Fox Pro and other stand-alone desktop applications.
7. It is averred in the plaint that the software programs developed and marketed by the plaintiff No.1 are "computer programs" within the meaning of Section 2 (ffc) of the Copyright Act, 1957 and are included in the definition of "literary work" as per Section 2 (o) of the Act. The plaintiff No.1's computer programs are "works" that were first published in the USA and are also registered in the USA. The said programs have been created for the plaintiff No.1 by its employees, in course of their employment with the plaintiff No.1. Under the Indian Copyright Law, the copyright in a work created by an employee belongs to the employer under the 'Works made for Hire' doctrine. It is stated by the plaintiffs that both the computer program, 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 Act and plaintiff No.1is the owner of the said copyright.
8. It is stated in the plaint that the rights of the authors of member countries of the Berne Convention, Universal Copyright Conventions and the World Trade Organization (WTO) are protected under Indian Copyright Law and India and USA are signatories to the Berne Convention, Universal Copyright Convention and the WTO Agreement. As the plaintiffs' works are created by authors of the member countries and originate from and are first published in the said member countries, therefore, in India, the works of plaintiffs are protected under Section 40 of the Copyright Act, 1957 read with the International Copyright Order, 1999. The plaintiff No.1 being the owner of the copyright in the aforesaid literary works within the meaning of Section 17 of the Copyright Act, 1957 and therefore, is CS (OS) No.426/2012 Page 3 of 7 entitled to all the exclusive rights flowing from such ownership as set out in Section 14 of the Copyright Act, 1957.
9. It is further stated that the plaintiffs have been vigilant in protecting their proprietary and common law rights before this Court and from time to time got ex parte ad interim injunctions against end- users in the past, restraining pirated/unlicensed and under-licensed use of software.
The case of the plaintiffs against the defendants
10. Defendant No.1 is a company incorporated and existing under the Companies Act, 1956, having its registered office at Plot No.48, Megha Hills, Ayyappa Society, Madhapur, Hyderabad-500081. Defendant No.2 is the group company of the defendant No.1, as they carry on their business activities from the same address as per the information available on the website of the defendant No.1 located at www.ajel.com. Defendants are a global software services company providing consulting, systems integration and outsourcing solutions to clients in key industry verticals worldwide and claim to be a full scale IT solution providers.
11. It is averred in the plaint that in the month of May, 2011, the plaintiffs came to know from its market sources that the defendants were using software programs, including Microsoft Windows, Microsoft Office, Windows Server etc. belonging to the plaintiff No.1 for their business and other commercial purposes at its offices. Thereafter, the plaintiffs conducted a Software Review Management (SAM) review program in order to identify if there are any gaps in the software licenses being used at the offices of the defendants.
12. It is further averred that in the month of June, 2011, a SAM review was conducted at the offices of the defendants located at Hyderabad and license gaps with respect to the plaintiffs' software CS (OS) No.426/2012 Page 4 of 7 usage was identified and shortfall of licenses shared with the defendants. The shortfall in licenses identified at the office of the defendants in Hyderabad were as follows:-
Software Products Version Quantity Windows XP Professional XP 43 Windows Vista Ultimate Non-specific 1 Office Home and Student 2007 1 Office Pro w/Front Page XP 1 Office Professional 2003 18 Office Professional Plus 2010 1 Office Enterprise 2007 35 Windows Server Enterprise 2003 2 Windows Server CAL 2003 18 SQL Server Developer 2005 11 Edition Visual Studio Professional 2005 3 Visual Studio Professional 2008 5 Visual Studio Ultimate 2010 2 Visio Professional 2003 3 Project Professional 2007 2
13. Despite various correspondences exchanged between plaintiffs and defendants, the defendants did not make efforts to close the license gap identified during the SAM review program conducted in June, 2011 and shared the shortfall of the licenses, therefore the plaintiffs were left with no option, but to file the present suit.
14. In ex-parte evidence, the plaintiff filed affidavit dated 27th October, 2014 of Mr. Vishal Ahuja, Constituted Attorney of the plaintiffs as Ex. PW1/A reiterating the contents of the plaint and also CS (OS) No.426/2012 Page 5 of 7 exhibited certain documents exhibited as Ex.PW1/1 to Ex. PW 1/5 in support of its case. The same are as follows :
Copies of the Power of Attorney dated 26th April, 2010 and Power of Attorney dated 25th November, 2011 have been exhibited as Ex.PW1/1(colly.);
Certified copies of the notarized/consularized Copyright Registration Certificates of the plaintiffs' software programs have been exhibited as Ex.PW1/2(colly); Copy of the End User License Agreements pertaining to the specific use of the plaintiff No.1's software programs has been exhibited as Ex.PW1/3;
Printouts taken from the website of the defendants www.ajel.com have been exhibited as Ex.PW1/4(colly.); The correspondence exchanged between the representatives of the plaintiffs and the defendants has been exhibited as Ex.PW1/5(colly.).
15. The plaintiffs' ex-parte evidence was closed on 5th January, 2015.
16. The evidence filed by the plaintiffs has gone unrebutted as no cross-examination of the plaintiffs' witness was carried out, therefore, the statements made by the plaintiffs are accepted as correct deposition.
17. Learned counsel for the plaintiffs submits that a judgment and a decree be passed as per law, in terms of Order VII Rule 5(2) and (3) read with Order VIII Rule 10 CPC, since the defendants have neither filed their written statement upon being called upon by this Court nor have they filed any pleadings, after having engaged a pleader through whom they entered appearance on only one date. Counsel for the CS (OS) No.426/2012 Page 6 of 7 plaintiffs has referred the case of Supreme Court in Badat and Co. v. East India Trading Co. AIR 1964 SC 538.
18. Counsel for the plaintiffs does not press the relief of damages, rendition of accounts and costs.
19. In view of the above, a decree for permanent injunction is passed in terms of para 29(I) of the plaint in favour of the plaintiffs and against the defendants restraining them, their principal officers, directors, agents, franchisees, servants and all others acting for and on their behalf, from directly or indirectly reproducing/storing/installing and/or using pirated/unlicensed software programs of the plaintiff No.1.
20. The other reliefs are not pressed.
21. Decree be drawn accordingly.
(MANMOHAN SINGH) JUDGE OCTOBER 28, 2014 CS (OS) No.426/2012 Page 7 of 7