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The technical expert has opined that the plaintiff's programmes contained in the hard disk of the computer are unlicensed and/or pirated versions of the plaintiff's software.

5. On a comparison of the software being sold by the defendants, and software originating from the plaintiff, it was found that the software supplied by the defendants were pirated versions of original plaintiff's computer programmes. The following were the distinguishing features found:

The software supplied by the defendants does not have the accompanying User's Manual and was not shrink wrapped;
(a) Actual Damages- Plaintiff has suffered heavy loss of revenue due to the defendants' unauthorised loading of plaintiff's pirated software free of cost onto the computers of its consumers. By award of actual damages, the plaintiff seeks to be put in the same position as it defendants caused no loss to the plaintiff.
(b) Damages to Goodwill and Reputation- Plaintiff company and its software are indisputably No. 1 market leader in the world for software products and thus, enjoy enormous world-wide reputation and goodwill. Defendants by unauthorisedly loading free software of the plaintiff from pirated CDs, have undermined plaintiff's reputation and goodwill in the market. The infringing acts of the defendants not only weaken the market position of the plaintiff but also causes bad image before its existing and potential customers.
11. He has assessed the loss suffered by the plaintiff in the sum of Rs. 1,28,23,200/- and on the basis thereof is contained in para 8 and 9 of the affidavit which are quoted verbatim:
8. I state that in order to arrive at the approximate sales by the Defendants of the computers loaded with the abovementioned pirated software of the Plaintiff, the following conservative and fair assumptions and estimates have been made:
(a) That the Plaintiff caught the Defendants violating their copyrights by indulging in blatant piracy of their software was in the year 2002. The court has granted the injunction against the Defendants on 3rd March 2003, which was confirmed on 24th March 2004. The Defendants repeated and continuous infringing activities were again confirmed in April 2005. Keeping the Defendant's conduct in view, it will be fair and justified to conservatively assume that the Defendants were indulging in piracy of Plaintiff's software programs on a continuous basis for the last 5 years i.e. since 2000 (the year of their inception).
(c) That any person who purchases a computer would have been provided with the operating system to run the computer. That person would have also opted for Microsoft Office application Page 3710 software since the Defendants were willfully offering to load/install a pirated copy of the same onto the computer. The conduct of the Defendants clearly demonstrates that.
(d) However, Microsoft Visual Studio, which is a software development environment, is very popular in the student community, as it provides them with the entire range of development tools such as Visual Basic, Visual C++, Visual Sourcesafe, Visual FoxPro and Development Environment. Thus, I am assuming that conservatively at least 25% of the computers would have been preloaded with pirated copies of this software, sold by the Defendants. Therefore, atleast 36 computers in a year would have been pre-loaded with the Visual Studio software program.