MICROSOFT CORPORATION Vs. NIMESH

JUDGEMENT

(1.) The plaintiffs have filed the present suit for permanent injunction restraining the infringement of copyrights, delivery up, rendition of accounts, damages, etc. against the defendant. The plaintiff No.1, is a company organized and existing under the laws of the State of Washington, USA, plaintiff No.2, Microsoft Corporation India Private Limited is the wholly owned marketing subsidiary of the plaintiff No.1, located in New Delhi. The plaintiffs are engaged in the business of developing, manufacturing, licensing and support of a range of software products for various computing devices. The software products of the plaintiffs include operating systems for servers, personal computers, intelligent devices etc. It is averred in the plaint that the software programs developed and marketed by the plaintiffs are "computer program" within the meaning of Section 2 (ffc) of the Copyright Act, 1957 and is included in the definition of literary work as per Section 2 (o) of the said Act. The plaintiff'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 and 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. 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 Copyright Act, 1957 and plaintiff No.1is the owner of the said copyright.

(2.) It stated in the plaint that the rights of the authors of member countries of the Berne and Universal Copyright Conventions are protected under Indian copyright law and India and USA are signatories to both the Universal Copyright Convention as well as the Berne Convention. 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 plaintiff No.1 are protected under Section 40 of the Copyright Act, 1957 read with the International Copyright Order, 1999. Plaintiff No.1 is the owner of the copyright in the aforesaid literary works within the meaning of Section 17 of the Copyright Act, 1957 and therefore, is entitled to all exclusive rights flowing from such ownership as set out in Section 14 of the Copyright Act, 1957. The plaintiffs have been vigilant in protecting their copyrights and from time to time got several infringing parties prosecuted in India.

(3.) It is averred in the plaint that in the month of July 2010, the plaintiffs came to know that the defendant was infringing plaintiffs' copyrights and other intellectual property rights by loading the Hard Disk of the plaintiffs' software programs on to the branded computers which are sold by them to their customers, without taking any authorization from the plaintiffs to do so. Thus, the plaintiffs sent an independent investigator namely, Mr. Shubham Jain, to the outlet of the defendant to ascertain if the defendant was actually involved in such infringing activities. Accordingly, on 27.07.2010 the said investigator visited the premises of defendant at M/s @Gizgahertz, 350, Atlantic House, Ground Floor, Lamington Road, Next to Police Station, Grant Road (E) Mumbai-400 007, where he met one Mr. Vikash, who introduced himself as the sales executive at M/s @Gizgahertz and informed that Mr. Nimesh is its owner. Thereafter, the said investigator placed an order for a laptop. On the next day, the said investigator was given the delivery of the laptop booked by him on the previous day which was pre loaded with the unlicensed software of the plaintiff company like MICROOFT WINDOWS, MICROSOST OFFICE etc. On 02.08.2010, the independent investigator delivered the said laptop to the plaintiffs' representative. A detailed affidavit of the said investigator, Mr. Shubham Jain, along with annexures has been filed along with the plaint.