Topic: Microsoft Corporation v Mr. Kiran & Another - Software infringement

Microsoft Corporation instituted a suit for permanent injunction restraining
the infringement of copyrights etc. against Mr. Kiran.

Mr. Kiran was illegally loading Microsoft software on computers that his
company was assembling and selling. The software loaded onto the
machine was not accompanied by the original Media i.e.:

1. Compact Discs,
2. Certificate of Authenticity (COA),
3. End User License Agreements (EULAs),
4. User Instruction Manuals,
5. Registration Cards etc
that accompany the plaintiff's genuine software.

Points put forth by Microsoft
1. Microsoft Corporation's computer programs are “works” that were
first published in the USA and are also registered in the USA.
These programs have been created by Microsoft Corporation's
employees for Microsoft.

2. Under the US Copyright Law, US Code Title 17, Section 201(b),
the copyright in a work created by an employee belongs to the
employer under the “Work made for Hire” doctrine.

3. 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
Copyright Act, 1957. Microsoft Corporation is the owner of the
said copyrights.

4. The rights of authors of member countries of the Berne and
Universal Copyright Conventions are protected under Indian
Copyright law. India and the USA are signatories to both the
Universal Copyright Convention as well as the Berne Convention.

5. Microsoft's works are created by authors of member countries
and originate from and are first published in the said member
countries. These works are, thus, protected in India under Section
40 of the Copyright Act, 1957 read with the International
Copyright Order, 1999.

6. Microsoft suffers incalculable damage to its intellectual property
rights and business on account of various forms of copyright
piracy.

2. Under the US Copyright Law, US Code Title 17, Section 201(b),
the copyright in a work created by an employee belongs to the
employer under the “Work made for Hire” doctrine.

3. 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
Copyright Act, 1957. Microsoft Corporation is the owner of the
said copyrights.

4. The rights of authors of member countries of the Berne and
Universal Copyright Conventions are protected under Indian
Copyright law. India and the USA are signatories to both the
Universal Copyright Convention as well as the Berne Convention.

5. Microsoft's works are created by authors of member countries
and originate from and are first published in the said member
countries. These works are, thus, protected in India under Section
40 of the Copyright Act, 1957 read with the International
Copyright Order, 1999.

6. Microsoft suffers incalculable damage to its intellectual property
rights and business on account of various forms of copyright
piracy.

11. Microsoft has suffered damages under the following heads:

a. Actual Damages – Microsoft has suffered a heavy loss of
revenue due to the unauthorized loading of pirated
versions of the software free of cost, onto the computers
of Mr. Kiran’s consumers.

b. Damages to Goodwill and Reputation – The
unauthorized loading of Microsoft software from pirated
CDs has undermined Microsoft’s reputation and goodwill.

c. Exemplary Damages - Such damages are awarded if
there is a flagrant violation by the defendants of the
plaintiff's rights, to set a deterrent example for others.
Such violation can be inferred from, inter alia, nature of
the infringing act, reasonable knowledge of a person
skilled in the concerned trade and continuance of violation
despite knowledge. Mr. Kiran’s act leaves no doubt as to
the flagrant violation of Microsoft, the plaintiff's, intellectual
property rights.

Findings of the Court
1. The computer industry is a high investment industry not only in
terms of money but also in terms of the valuable time, skill and
effort which goes into the development of new and advanced
computer programs and software, therefore, it becomes
imperative that the illegal trade activities of traders like the
defendants are restrained and the dangerous growth of the
computer software piracy be stemmed. And since Microsoft is the
world leader in this field, it tends to be the main target of such
counterfeiting and piracy.

2. Various averments made by Microsoft have gone unrebutted as
Mr. Kiran has not come forward with any defence.

3. Microsoft has been able to prove that Mr. Kiran has been
infringing its copyright, as there is no licence granted by Microsoft
to Mr. Kiran for this purpose.

4. Mr. Kiran has willfully, intentionally and flagrantly violated the
copyrights and trade mark of Microsoft and has disregarded
Microsoft’s rights and caused "deliberate and calculated"
infringement of copyrights and trademark.

5. Software piracy is a menace and needs to be put down with a heavy hand.


Conclusion
A decree for permanent injunction was passed in favour of Microsoft against Mr. Kiran restraining him from using or otherwise copying, selling, offering for sale, distributing, issuing to the public, counterfeit/unlicensed versions of Microsoft software, in any manner, amounting to infringement of Microsoft’s copyrights in the said computer programs and related manuals.

A decree of damages was also passed in favour of Microsoft for Rs. 5 lakh.