Foundry Visionmongers Ltd. vs Ankur Sudhir Sachdev and Others

S.C. Gupte, J.—1. This is a copyright infringement suit filed by the Plaintiff against Defendant No. 4 and its directors, who are Defendant Nos. 1 to 3. The Plaintiff carries on business of sale and distribution of its software programmes known as "NUKE" and "NUKEX". The Plaintiff is a Company incorporated under the laws of England and Wales and carries on business in India through its authorised distributor, Ark Infosolutions Pvt. Ltd. The Plaintiff has developed a flagship software programme for rendering visual effects known as "NUKE". The software is claimed to be a powerful compositing product, which delivers unparalleled speed and highest quality of visual effects. This software comes in three editions, which are designated as "NUKE", "NUKEX" and "NUKE STUDIO". The grievance of the Plaintiff is that the Defendants, who hold two licences for software programmes "NUKE" and "NUKEX" from the Plaintiff, have been unauthorisedly using the software on about 35 machines. It appears that the Plaintiff has appointed private investigators for investigating the piracy of the Plaintiff''s software programmes and determining the scope of the impugned unauthorised activities of the Defendants. There are two reports of Private investigators placed on record by the Plaintiff. The reports broadly indicate that Defendant No. 4 is involved in the business of visual effects and computer graphic services and has about 30-35 computer systems installed with the software of "NUKE" version 9 and 9.9, which are used by about 60 employees of Defendant No. 4. One of the investigating reports also indicates that the Defendants appear to have downloaded and even recommend to others to download the latest version of "NUKE" from certain websites on the Internet. Such downloading, of course, would be clearly unauthorised and an act of piracy.

The Plaintiff claims that if this Court were to give notice to the Defendants before passing an ad-interim order, the Defendants are likely to uninstall or remove the infringing versions of the software from their machines, thereby suppressing and tampering the evidence of actual usage of the Plaintiffs software and frustrating a substantial purpose of the present notice of motion. In the premises, the Plaintiff submits that this is a fit case for an ex-parte order against the Defendants, particularly with a view to carry out search and seizure operations at their premises. Learned Counsel for the Plaintiff relies on several judgments of Delhi High Court on similar facts in cases of infringement and piracy of software, where local commissioners are appointed ex-parte to carry out search and seizure. He particularly relies on a Division Bench judgment of Delhi High Court in Autodesk Inc and Anr. v. A.V.T. Shankerdass and Anr. 2008 (37) PTC 571 (Del.), where the Division Bench of Delhi High Court has laid down elaborate guidelines for exercise of discretion by Courts in the matter of appointment of a local commissioner in software infringement and piracy matters.

Having regard to the averments made in the plaint and the documents produced therewith, including two reports of Private Investigators, the Plaintiff does appear to have a prima facie case for atleast ordering a search at the Defendants'' premises and make an inventory of offending software used by the Defendants at their premises. By its very nature, in a case of software piracy, it is imperative that the Court must act swiftly and without advance notice to the Defendant. If an advance notice of an ad-interim application is issued, there is every likelihood that the pirated software and other incriminating evidence may be lost, removed or destroyed. By its very nature, it is necessary to have an element of surprise so that the factual position is not altered.

Since the Plaintiff has made out a prima facie case and it is imperative that an ex-parte order of inventory be passed, the following order is passed by way of an ad-interim relief:-

(i) Court Receiver, High Court, Bombay, is appointed as a Commissioner for visiting the premises of the Defendants, described in the plaint and the Notice of Motion. The Court Receiver shall designate his representative to carry out spot inspection at these premises and search the computers, including desktops and laptops used by the Defendants, to ascertain if the Plaintiffs software programmes, including "NUKE" and "NUKEX" and their variants, have been installed on these computers. The Court Receiver''s representative shall make an inventory of the number of machines installed by the Defendants, where these softwares are actually used.

(ii) The Court Receiver''s representative shall take assistance of the Plaintiffs authorised representative for visiting the Defendants'' premises and conducting the search and making the inventory.

(iii) The Receiver''s representative may also seek police assistance from the local police station in Andheri (W), Mumbai, for carrying out the task assigned to him.

(iv) Whilst carrying out this inventory, the Receiver''s representative shall be permitted to make copies of hard discs of the Defendants'' computers, where the Plaintiff''s software programmes, described above, have been installed. Such copies made shall be sealed in the presence of the representatives of the Defendants as well as the Plaintiff.

(v) The Receiver shall make available the sealed record together with his report to this Court by the next date.

(vi) There will also be an ad-interim injunction restraining the Defendants from infringing the Plaintiffs copyright, including software programmes, including "NUKE" and "NUKEX" and their variants in any manner either by reproducing, circulating or installing or using pirated or unlicensed programmes of "NUKE" and "NUKEX" or their variants or

(vii) The Plaintiff shall comply with the requirements of Order 39, Rule 3 within a period of forty eight hours of the Receiver''s representative visiting the Defendants'' premises for carrying out the inventory.

(viii) The Defendants shall be at liberty to apply for vacating or varying this order with a minimum notice of twenty four hours to the Plaintiff.

(ix) Defendants to file their reply to the Notice of Motion within a period of two weeks from today. Rejoinder, if any; within one week thereafter.

(x) Place the Notice of Motion for hearing on 16 February 2016.

(xi) The parties, the Receiver and all other concerned agencies to act on the authenticated copy of this order.

S.C. Gupte, J.—ORDER DATED JANUARY 27, 2016

Not on board. Mentioned. Taken on board. No R & P.

The following clauses shall be added after clause (ii) of paragraph 5 of the order dated 20 January 2016.

ii(a) The representative of the Court Receiver/Commissioner is permitted to seek assistance of the technical experts of this Court under Registrar (IT), High Court, Bombay;

ii(b) The Defendants shall give access to their computers including desktops, laptops and accessories installed at their premises and also render such other assistance as may be required by the Court Receiver/Commissioner for execution of this order.

The above additions shall be carried out in the original order as well as order uploaded on server.