Microsoft CORPORATION v LEONIDAS - [2010] FMCA 893

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MICROSOFT CORPORATION & ANOR v LEONIDAS

[2010] FMCA 893

COPYRIGHT – Practice and procedure – no participation by respondent – summary judgement – whether copyright in computer software was infringed.

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

First Applicant:

MICROSOFT CORPORATION

Second Applicant:

MICROSOFT PTY LIMITED

Respondent:

GEORGE LEONIDAS

File Number:

SYG 1736 of 2010

Judgment of:

Emmett FM

Hearing date:

9 November 2010

Date of Last Submission:

9 November 2010

Delivered at:

Sydney

Delivered on:

9 November 2010

REPRESENTATION

Solicitors for the Applicant:

Mr G. Hansen, Harris & Company

No appearance by or on behalf of the respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1736 of 2010

MICROSOFT CORPORATION

First Applicant

MICROSOFT PTY LIMITED

Second Applicant

And

GEORGE LEONIDAS

Respondent

REASONS FOR JUDGMENT

Ex Tempore

The applicants seek orders against the respondent restraining further infringement of copyright in their computer programs and damages for infringement of copyright pursuant to s.115(2) and s.115(4) of the Copyright Act 1968 (Cth).
The first applicant (“Microsoft”) is a developer, marketer, distributor and supplier of certain computer software. Microsoft is incorporated under the laws of the state of Washington in the United States of America. The second applicant (“MPL”) is a wholly owned subsidiary of Microsoft and is incorporated in Australia.
The respondent has been a retailer on the website (“eBay”) since at least 6 February 2007 under the eBay member name “orama333”.
On 20 August 2010, on the applicants’ interlocutory application, the Court ordered that service of the applicants’ application and statement of claim, filed on 10 August 2010, be effected by serving the respondent at his email address, morakis41@gmail.com. On that occasion, the matter was stood over for further direction on 6 October 2010. On 6 October 2010 the respondent was directed to file and serve a response and defence by 18 October 2010 and to file and serve any evidence by way of affidavit on which the respondent intended to rely by 1 November 2010. The Order further stated that, in the event no document is filed by or on behalf of the respondent, the matter may proceed to summary hearing today before me. No document has been filed by or on behalf of the respondent.
In the circumstances, I am satisfied that the respondent is aware, or should be aware, of the applicants’ proceeding before this Court and for whatever reason has chosen not to participate. In the circumstances, I intend to deal with the matter by way of judgment today.
Pursuant to s.126 of the Act, I accept that Microsoft is the owner of copyright in certain Microsoft programs, inter alia, Microsoft Windows 7 Ultimate, Microsoft Office 2007 Professional and Microsoft Windows Server 2008. The respondent is not, nor has he ever been, an authorised user of Micrsoft’s copyright in the programs.
Copies of the three programs referred to above were purchased by Rachael Nielson, an investigator with Trade Mark Investigation Services, as deposed to…

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 893
Case: [2010] FMCA 893
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court, Microsoft Corporation and Microsoft Pty Limited (collectively referred to as "Microsoft") brought proceedings against George Leonidas (the "respondent") to address allegations of copyright infringement concerning various Microsoft software programs. The specific software in question included Microsoft Windows 7 Ultimate, Microsoft Office 2007 Professional, and Microsoft Windows Server 2008. Microsoft alleged that Leonidas had been selling unauthorised copies of these software programs through the online marketplace eBay under the username "orama333." Microsoft sought an order restraining further infringement and damages for the alleged copyright infringement under sections 115(2) and 115(4) of the Copyright Act 1968 (Cth).

The primary legal issue before the court was whether Leonidas had infringed Microsoft's copyright by selling unauthorised copies of the software programs. The court also had to consider the appropriate relief to be granted to Microsoft in light of the respondent's failure to participate in the proceedings. Federal Magistrate Emmett addressed these issues by examining the evidence presented by Microsoft, including affidavits from various witnesses who confirmed the purchase and sale of unauthorised copies of the software by Leonidas. The court accepted the evidence that Leonidas had sold multiple copies of the software through eBay, and that these sales constituted copyright infringement as he was not an authorised distributor of Microsoft's software.

Federal Magistrate Emmett ruled that Leonidas had indeed infringed Microsoft's copyright. The court was satisfied with the evidence provided by Microsoft, including affidavits from identification analysts and investigators, which demonstrated that the software sold by Leonidas were unauthorised copies. The court also noted Leonidas's admission that he had purchased the software in Vietnam and China, and his offer to send the CDs to Microsoft's solicitors, which supported the inference that the additional copies sold were also unauthorised. Consequently, the court granted Microsoft's request for an order restraining Leonidas from further infringing their copyright and directed that the matter of damages would be heard at a later date. The court further directed Microsoft to notify Leonidas of the orders made, ensuring he was aware of the court's decision.

The Federal Magistrates Court ordered that George Leonidas be restrained from further infringing the copyright owned by Microsoft in the specified software programs. The matter of damages was stood over to a later date to allow Microsoft to present further evidence. The court also directed that any confidential evidence in support of the damages claim be filed in a marked envelope and accessed only with leave of the court. The court further mandated that Microsoft notify Leonidas of the orders made.

Orders