Copyright infringement in software programmes under the Copyright Act, 1957, leading to remedies including permanent injunction, delivery up of unlicensed software, and damages.

JUDGMENT :

1. The present Suit has been filed by the plaintiffs praying for a decree of permanent injunction against the defendants restraining them from directly or indirectly reproducing/storing/installing and/or using pirated/unlicensed software programmes of the plaintiff no.1, thereby infringing the copyright in the plaintiffs’ computer programmes/software titles. The plaintiffs further pray for delivery up, rendition of accounts, damages as also costs of the Suit.

FACTUAL BACKGROUND

Case of the plaintiffs:

i) Software

2. The plaintiff no.1 was set up in the year 1975 under the laws of the State of Washington, United States of America (in short, ‘USA’) and is a global software publisher for personal and business computing. The software products of the plaintiff no. 1 include operating systems for servers, personal computers (in short, ‘PC’) and intelligent devices; server applications for distributed computing environments, information worker productivity applications and software development tools.

3. The plaintiff no.2 is the Indian subsidiary of the plaintiff no. 1, set up in the year 1989. The plaintiff no.2 provides marketing, promotion, anti-piracy awareness campaigns and actions, and channel development support to the plaintiff no.1 or/and its affiliates in India.

4. The plaintiff no.1’s popular software products include the ‘Microsoft Windows Operating Systems” (various versions) as also application software such as “Microsoft Office” and development tools like “Visual Studio” and ‘Visual C++’. The ‘Microsoft Windows’ family of the plaintiff no. 1 includes software tools like Windows 1.0, Windows 95, Windows 98, Windows Me, Windows 2000, Window XP Home and Windows XP Professional, among others.

5. The ‘Microsoft Office’ family includes versions like Office 97, Office 2000, Office XP, Office 2003, Office 2007, Office 2010 and the product line includes Microsoft Access, Microsoft Excel, FrontPage, Microsoft Word, PowerPoint, Microsoft Project, Publisher and Outlook to name a few. These software are today installed and used on millions of computers all over the world, including in India. The products of the plaintiff no.1 are distributed in New Delhi through various authorized distributors.

ii) End User Agreement

6. The computer programs of the plaintiff no.1 are always licensed in a ‘soft” version of the ‘End-User License Agreement’, ‘Registration Card’ and other relevant ‘User Manuals’, all contained in the Original CD-ROM carrying the actual software. The licenses of the latest versions of the plaintiff no.1's computer programs are either bought off the shelf or a licensed copy of the software is supplied as Original Equipment Manufacturers (in short, ‘OEMs’) along with a PC, however, in both the circumstances the software requires activation.

7. The entire process of software registration can be completed via Internet or by speaking with a customer service representative of the plaintiff no.1. A unique Product Key or Installation ID is required for each installation. During the process of installation, the user is required to fill in the Installation ID or a unique Product Key number in order to finalize the installation and to activate the software. To ensure the end user's privacy, the plaintiffs use a oneway mathematical algorithm to create the hardware hash used by Product Activation to create the Installation ID. This ID is unique to the particular PC on which the software is loaded.

iii) Copyright of the plaintiffs in the Software and End User Agreement

8. Under the provisions of the Copyright Act, 1957 (in short, ‘the Act’), the software programmes developed and marketed by the plaintiff no. 1 (and the plaintiff no.2 in India) would fall within the definition of ‘computer programmes’ under Section 2(ffc) and are also included in the definition of a ‘literary work’ under Section 2(o) of the Act. The plaintiff no. 1’s computer programmes are ‘works” that were first published and are also registered in the USA.

9. It is fu