Microsoft Corp v Atifo Pty Ltd

FEDERAL COURT OF AUSTRALIA

COPYRIGHT - damages - quantification of damages for infringement of copyright - where respondents sold computers preloaded with unlicensed copies of the applicants’ software - compensatory damages - where evidence as to applicants’ loss inferential - license fee approach as a guide to the assessment of damages - additional damages - whether conduct “flagrant” - where evidence of deliberate pattern of infringement - where respondents’ records altered - where failure by respondents to comply with court orders as to discovery

Copyright Act 1968 (Cth), s 115

Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69, applied
Amalgamated Mining Services Pty Ltd v Warman (1992) 24 IPR 461, cited

MICROSOFT CORPORATION & MICROSOFT PTY LIMITED - v -
ATIFO PTY LIMITED, PEPEROM PTY LIMITED & JUN XUN LIAO

NO NG 344 OF 1996

TAMBERLIN J
SYDNEY
29 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 344  of 1996
)
GENERAL DIVISION	)

BETWEEN:              

MICROSOFT CORPORATION
First Applicant

MICROSOFT PTY LIMITED
Second Applicant

  AND:  

ATIFO PTY LIMITED
(ACN 051 457 106)
trading as ABC PERIPHERALS
First Respondent

PEPEROM PTY LIMITED
(ACN 064 518 412)
trading as ABC DATA LINK
Second Respondent

JUN XUN LIAO
Third Respondent

JUDGE:	TAMBERLIN J
PLACE:	SYDNEY
DATED:	29 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The respondents pay to the first applicant damages in an amount of $44,000.

1. The respondents pay the applicants’ costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)   NG 344  of 1996
)
GENERAL DIVISION	)

BETWEEN:              

MICROSOFT CORPORATION
First Applicant

MICROSOFT PTY LIMITED
Second Applicant

  AND:  

ATIFO PTY LIMITED
(ACN 051 457 106)
trading as ABC PERIPHERALS
First Respondent

PEPEROM PTY LIMITED
(ACN 064 518 412)
trading as ABC DATA LINK
Second Respondent

JUN XUN LIAO
Third Respondent

JUDGE:	TAMBERLIN J
PLACE:	SYDNEY
DATED:	29 JULY 1997

REASONS FOR JUDGMENT

On 12 May 1997 Lindgren J ordered that:

“1Each of the Respondents whether by itself, himself or its or his servants, agents or otherwise be restrained from:

(a)reproducing or authorising the reproduction, in any material form, of the whole or a substantial part of any of  the computer programs identified in Schedule A to the Statement of Claim filed herein (the “Microsoft Programs”) without the licence of the First Applicant;

(b)selling, offering for sale, supplying, offering to supply or distributing for the purpose of trade any CD-ROM, floppy disk or other article which reproduces, in any material form, the whole or a substantial part of any of the Microsoft Programs without the licence of the First Applicant.

2Each of the Respondents whether by itself, himself or its or his servants, agents or otherwise be restrained from representing, in trade or commerce, to persons to whom the Respondents or any of them supply or offer to supply any copy of any…