PHONOLOGIES (INDIA) PVT. LTD Vs. AVAYA INC

JUDGEMENT

(1.) The Plaintiff, Phonologies (India) Pvt. Ltd. ("Phonologies") and the Defendants 1 and 2, Avaya Inc. and Avaya (India) Pvt. Ltd. (together, "Avaya") provide telecommunication solutions. The other Defendants, Redington (India) Ltd. ("Redington") and Datacom Products India Pvt. Ltd. ("Datacom") are distributors and resellers for Avaya. Phonologies, suit is for a permanent injunction restraining Avaya from infringing its copyright in the software "Updated Oktopous ccXML Interpreter PIK Version 1.1 developed for the operating system Red Hat Linux AS 5.0 and CentOS 5.0 on Intel 32- bit" ("Updated Oktopous 1.1") in Avaya's telecommunication solutions "Avaya Voice Portal 5.0", "Avaya Aura Experience Portal 6.0" and/or, "Avaya Aura Experience Portal 7.0" ("Avaya Solutions"). Phonologies also seeks damages of Rs. 120 crores for the infringement alleged. The Notice of Motion is for a temporary injunction in similar terms.

(2.) Phonologies developed a software titled Oktopous ccXML Interpreter PIK Version 1.0 ("Oktopous 1.0") for telecommunications solutions and released it under an unrestricted open source public license it called the "Phonologies Public License Software Version 1.0" on the Source Forge website. Phonologies later enhanced or upgraded Oktopous 1.0 to Oktopous ccXML Interpreter PIK Version 1.1 ("Oktopous 1.1"). Under an Agreement dated 13th September 2006 ("the First Agreement") Phonologies licensed Oktopous 1.1 to Avaya for use and integration into Avaya's own telecommunication software solutions. The First Agreement had a no- fault termination clause that allowed Phonologies to terminate the agreement with 30 days' prior notice. Phonologies invoked this clause in 2010, and the First Agreement was terminated. This is alleged to have been done for the sole purpose of re-negotiating terms and subsequently re-licensing the software to Avaya, but that is a matter of no moment for our purposes in this application.

(3.) On 26th May 2010, Phonologies and Avaya executed a re negotiated Agreement ("the Agreement"; copy, Exhibit "A" to the Plaint) licensing the upgraded software Oktopous 1.1 to Avaya for a lump sum US$ 65,000. It remained in place till 8th September 2012 when Phonologies terminated it (this Agreement did not have a no- fault termination clause). I will turn to the details of this Agreement and the correspondence that led to its termination later. For the present, it is necessary to note the submission of Mr. Kane, learned advocate for the Plaintiffs: that Oktopous being said in the Agreement to have been developed for a particular Operating System ("OS") platform and, indeed, a particular version of that OS, Avaya was not entitled to use Oktopous on any other OS platform or even any other version of the defined OS. Any such use was a breach. Oktopous was licensed for use only on Red Hat Linux AS 5.0/CentOS 5.0 on Intel 32-bit; Avaya, Phonologies learned in early 2012, was using it for product development (of Avaya's own software) on the Windows platform and, later, for subsequent versions of Linux or CentOS. That constituted a breach justifying the termination; and once Phonologies had terminated the Agreement, every day's use thereafter was a continued infringement of its copyright by Avaya.