Microsoft Corporation v Leonidas - [2010] FMCA 986

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MICROSOFT CORPORATION & ANOR v LEONIDAS

[2010] FMCA 986

COPYRIGHT –Damages – whether an order for compensatory damages under s.115(2) of the Copyright Act 1968 (Cth) should be made – whether an order for additional damages should be made pursuant to s.115(4) of the Copyright Act 1968 (Cth).

Copyright Act 1968 (Cth), ss.115(2); 115(4); 37 and 38.

Aristocrat Technologies Australia Pty Limited v DAP Services (Kempsey) Pty Limited (in liq) (2007) 157 FCR 564
Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472
Boyapati v Rockfeller Management Corporation (No 2) 2008 78 IPR 600
Flasback Holdings Pty Ltd & Ors v Showtime DVD Holdings Pty Ltd & Ors (2010) 270 ALR 54
International Writing institute Inc v Rimila Pty Ltd (1994) 30 IPR 250
Microsoft Corporation v Atifo Pty Ltd (1997) 38 IPR 643
Microsoft Corporation v PC Club 2005 67 IPR 262
Microsoft Corporation and Others v Tram (t/as Tramtek) (2010) 87 IPR 407
Microsoft Corporation & Anor v Leonidas [2010] FMCA 893
Nokia Corporation v Liu [2009] FCA 20
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257
Prior v Lansdowne Press Pty Ltd (1975) 12 ALR 685
Raben Footwear Pty Ltd v Polygram Records Inc (1997) 37 IPR 417
Ravenscroft v Herbert & New English Library [1980] RPC 193
Urban Ventures Pty Ltd v Solitaire Homes Pty Limited [2010] FCA 1373

First Applicant:

MICROSOFT CORPORATION

Second Applicant:

MICROSOFT PTY LTD

Respondent:

GEORGE LEONIDAS

File Number:

SYG 1736 of 2010

Judgment of:

Emmett FM

Hearing date:

7 December 2010

Date of Last Submission:

7 December 2010

Delivered at:

Sydney

Delivered on:

20 December 2010

REPRESENTATION

Solicitors for the Applicant:

Grant Hansen (Harris & Co)

There was no appearance by the Respondent

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1736 of 2010

MICROSOFT CORPORATION

First Applicant

MICROSOFT PTY LTD

Second Applicant

And

GEORGE LEONIDAS

Respondent

REASONS FOR JUDGMENT

Background

On 9 November 2010, I made orders pursuant to s.36 of the Copyright Act 1968 (Cth) (“The Act”) restraining the respondent from infringing the first applicant’s copyright in certain Microsoft computer programs (Microsoft Corporation & Anor v Leonidas [2010] FMCA 893).
The applicants now seek damages pursuant to s.115(2) and s.115(4) of the Act in respect of those infringements. I note that at the damages hearing, Mr Hansen informed the Court that the applicants no longer sought damages for conversion pursuant to s.116 of the Act.

Relevant legislation and legal principles

An award of damages for breach of copyright is to compensate the applicants for the loss they have suffered as a result of the respondent’s breach (Aristocrat Technologies Australia Pty Limited v DAP Services (Kempsey) Pty Limited (in liq) (2007) 157 FCR 564 at [24]-[25]).
Perram J in Flasback Holdings Pty Ltd & Ors v Showtime DVD Holdings Pty Ltd & Ors (2010) 270 ALR 54 at [24]-[25] helpfully sets out the governing principles in the assessment of damages for infringement of…

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 v Leonidas

Details

AGLC: Microsoft Corporation v Leonidas [2010] FMCA 986
Case: [2010] FMCA 986
Decision Date: 20 December 2010

CaseChat Overview and Summary

Microsoft Corporation and Microsoft Pty Ltd, the applicants, sought damages against George Leonidas, the respondent, for the infringement of copyright in certain Microsoft computer programs. The applicants sought compensatory damages pursuant to s.115(2) of the Copyright Act 1968 (Cth) and additional damages pursuant to s.115(4) of the Act. The Court was required to determine whether the applicants had suffered loss as a result of the respondent's infringement of copyright and, if so, the amount of compensatory damages to be awarded. The Court was also required to determine whether additional damages should be awarded to the applicants and, if so, the amount of those additional damages.

The Court found that the applicants had suffered loss as a result of the respondent's infringement of copyright in respect of programs sold in Australia. The Court awarded compensatory damages in the amount of $30,513.40. The Court found that the respondent's infringement of copyright was flagrant and that additional damages should be awarded. The Court awarded additional damages in the amount of $120,000.

In conclusion, the Court awarded compensatory damages in the amount of $30,513.40 and additional damages in the amount of $120,000. The respondent was ordered to pay the applicants' costs as agreed or taxed.

Orders