Microsoft Corporation & Ors v Mayhew - [2008] FMCA 121

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MICROSOFT CORPORATION & ORS v MAYHEW

[2008] FMCA 121

COPYRIGHT – Infringement – unauthorised copying of complete programs and operating systems onto computers for sale as a package which was more attractive to purchasers – the respondent’s breach made in the knowledge of the applicants’ rights – computer package containing unauthorised copy sold to applicants’ investigators.

Copyright Act 1968 (Cth), ss.10, 13, 14, 31, 36, 38, 115, 116
Powers of Attorney Act 1998 (Qld)
Trade Practices Act 1974 (Cth)

Autodesk v Cheung [1990] FCA 97
Colombia Pictures Industry Link & Anor v Muckins [1996] FCA 1606
Fenning Films Services Ltd v Wolverhampton, Walsall & District Cinemas Ltd [1914] 3 KB 1171
Led Builders Pty Ltd v Equal Homes Pty Ltd (1999) 44 IPR 24
Microsoft Corporation v Atifo Pty Ltd (1997) 38 IPR 643
Microsoft Corporation v PC Club Australia Pty Ltd [2005] FCA 1522
Nominet UK v Diverse Internet Pty Ltd (No 2) (2005) 68 IPR 131
Paramount Picture Corporation v Hasluck [2006] FCA 1431
Raven Croft v Herbert & New England Library [1980] RPC 193
Walsall v District Cinemas Ltd [1940] 3 KB 1171

First Applicant:

MICROSOFT CORPORATION

Second Applicant:

MICROSOFT PTY LIMITED

Third Applicant:

MICROSOFT LICENSING, GP

Respondent:

RODNEY MAYHEW TRADING AS RODNEY’S COMPUTERS

File number:

SYG 1969 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

3 December 2007

Delivered at:

Sydney

Delivered on:

12 February 2008

REPRESENTATION

Solicitors for the Applicants:

Mr G Hansen of Harris & Co

Advocate for the Respondent:

Mr L W Clampett

ORDERS

Rodney Mayhew, whether by himself, his servants or otherwise howsoever, be restrained from infringing Microsoft Corporation’s copyright in the computer programs described on the schedule attached hereto (Microsoft Programs) by reproducing or authorising the reproduction of Microsoft programs or a substantial part thereof without the licence of Microsoft Corporation.
Rodney Mayhew, whether by himself, his servants, agents or otherwise, be permanently restrained from representing in trade or commerce to persons to whom Rodney Mayhew supplies or offers to supply any Microsoft program, which has been wholly or partly reproduced, without a licence of Microsoft Corporation
Judgment be entered under s.115(2) of the Copyright Act 1968 (Cth) against Rodney Mayhew in the sum of $1,126.35.
Judgment be entered under s.115(4) of the Copyright Act 1968 (Cth) against Rodney Mayhew in the sum of $12,000.
Rodney Mayhew to pay the applicants’ costs of the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1969 of 2007

MICROSOFT CORPORATION

First Applicant

And

MICROSOFT PTY LIMITED

Second Applicant

And

MICROSOFT LICENSING, GP

Third Applicant

And

RODNEY MAYHEW T/AS RODNEY’S COMPUTERS

Respondent

REASONS FOR JUDGMENT

This application was brought by Microsoft Corporation, Microsoft Pty Ltd and Microsoft Licensing, GP (together referred to as “Microsoft”) against Rodney Mayhew trading as Rodney’s Computers seeking injunctive relief and damages arising from what is alleged to be breaches by Mr Mayhew of copyright held by Microsoft and breaches of the Trade Practices Act 1974 (Cth).

Background

In the application lodged in these proceedings, it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Microsoft Corporation & Ors v Mayhew

Details

AGLC: Microsoft Corporation & Ors v Mayhew [2008] FMCA 121
Case: [2008] FMCA 121
Decision Date: 12 February 2008

CaseChat Overview and Summary

Microsoft Corporation and its co-applicants commenced proceedings against Rodney Mayhew in the Federal Court of Australia, alleging that Mayhew infringed their copyright in various computer programs by reproducing and distributing unlicensed copies. The dispute centred on whether Mayhew had infringed Microsoft Corporation’s copyright in the computer programs, and if so, what remedies and penalties should be imposed. The court was required to determine the existence and extent of the copyright infringement, as well as the appropriate remedies and penalties under the Copyright Act 1968 (Cth).

The court found that Mayhew had indeed infringed Microsoft Corporation’s copyright by reproducing and distributing unlicensed copies of the computer programs. The court held that the reproductions were substantial, as they encompassed the expression of the underlying ideas and concepts of the programs. The court further found that Mayhew’s actions were deliberate and intentional, and that he had continued to infringe the copyright despite being aware of the applicants’ rights. The court awarded Microsoft Corporation an injunction against further infringement, as well as damages and penalties under the Copyright Act. The court ordered that Mayhew be restrained from reproducing or authorising the reproduction of the Microsoft programs without a licence, and from representing to consumers that he was authorised to supply the programs. The court also ordered that judgment be entered against Mayhew in the sum of $1,126.35 for the infringement of copyright, and $12,000 as a penalty for the wilful nature of the infringement. Finally, the court ordered that Mayhew pay the applicants’ costs of the proceedings.

The court's decision in Microsoft Corporation & Ors v Mayhew highlights the importance of protecting intellectual property rights, particularly in the technology sector. The court's finding of copyright infringement and imposition of remedies and penalties sends a strong message to potential infringers that such actions will not be tolerated. The decision also reinforces the importance of obtaining appropriate licences and authorisations before reproducing or distributing copyrighted material.

Orders

Orders of the court

Rodney Mayhew, whether by himself, his servants or otherwise howsoever, be restrained from infringing Microsoft Corporation’s copyright in the computer programs described on the schedule attached hereto (Microsoft Programs) by reproducing or authorising the reproduction of Microsoft programs or a substantial part thereof without the licence of Microsoft Corporation.

Rodney Mayhew, whether by himself, his servants, agents or otherwise, be permanently restrained from representing in trade or commerce to persons to whom Rodney Mayhew supplies or offers to supply any Microsoft program, which has been wholly or partly reproduced, without a licence of Microsoft Corporation

Judgment be entered under s.115(2) of the Copyright Act 1968 (Cth) against Rodney Mayhew in the sum of $1,126.35.

Judgment be entered under s.115(4) of the Copyright Act 1968 (Cth) against Rodney Mayhew in the sum of $12,000.

Rodney Mayhew to pay the applicants’ costs of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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