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, [email protected]. 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 in her affidavit sworn 20 August 2010. Ms Nielson deposed that she purchased the items of software from the respondent by ordering them from eBay from the seller operating under the eBay member name “orama333”. Ms Nielson deposed that, when she proceeded through the eBay checkout process, the seller’s account name was that of the respondent, together with his banking details. Ms Nielson deposed that on 25 June 2010 she received confirmation of her order signed “orama333” showing the email address of that eBay member, “[email protected]”.
I accept the evidence before me from Clayton Noble, solicitor employed by MPL, in his affidavit affirmed 20 August 2010 that the applicants received a Notification of Seizure on 9 July 2010 from Australian Customs and Border Protection Service in respect of 20 copies of Microsoft Windows 7 Ultimate.
I accept the evidence of Ms King, identification analyst employed by Adecco Australia Pty Ltd, as deposed to in her affidavits, sworn 19 August 2010 and 1 October 2010, that the copies purchased by Ms Nielson and those seized by Customs were unauthorised copies of the relevant Microsoft programs.
I also accept the further evidence before me of Mr Noble of a number of infringing sales by the respondent on eBay between 26 April 2010 and 21 June 2010 in respect of the three software programs referred to above. Annexed to Mr Noble’s affidavit was a printout of eBay sales showing that one Microsoft Windows 7 Ultimate program was sold for $93.00; three copies of Microsoft Office 2007 Professional were sold for $90.00 each; and, 22 copies of Microsoft Server 2008 were sold for between $296.00 and $591.00 each.
Further, I have regard to the affidavit of Mina Yu, solicitor employed by the applicants’ solicitors, affirmed 20 August 2010. Ms Yu deposed that, on 5 July 2010, the applicants’ solicitors wrote to the respondent by express post and email informing him that Microsoft is the owner of copyright subsisting in computer programs, unauthorised copies of which had been imported and sold by the respondent. The letter made certain demands on the respondent.
On about 8 July 2010 the applicants’ solicitors received two letters from the respondent by express post. The respondent’s letters stated that he had bought the software in Vietnam and China, had not made any copies and would cease selling it. He said he had “6 cds” in his possession and offered to send them to the applicants’ solicitor. The respondent stated in his email “I don’t want to sell anything that is not legal, Please advise me of your decision and I will work with you to tell you where I bought them from Thanks Orama333”.
The applicants ask the Court to draw the inference that, in the circumstances, those further copies referred to above and sold by “orama333” on eBay, were also unauthorised copies. I am satisfied on the evidence before me that it is appropriate to draw that inference and, accordingly, I do so.
Having regard to the admission made by “orama333” and in light of the evidence before the Court as disclosed in the following affidavits:
a) Mina Yu affirmed 10 August 2001;
b) J’aime King affirmed 19 August 2010;
c) Rachel Nielson sworn 20 August 2010;
d) Clayton Noble affirmed 20 August 2010;
e) Clayton Noble affirmed 23 September 2010;
f) J’aime King affirmed 1 October 2010;
g) Alvin Ng affirmed 6 October 2010;
h) Alvin Ng affirmed 9 November 2010; and
i) Alvin Ng affirmed 9 November 2010.
I accept that all the copies imported and sold in Australia by the respondent were unauthorised sales. In the circumstances, I am satisfied that the respondent infringed the applicants’ copyright and that the order restraining further infringement ought be made.
RECORDED : NOT TRANSCRIBED
I propose to stand over the hearing on damages to 7 December 2010 and make directions that the applicants have leave to file any further evidence in support of damages sought. Any evidence of a confidential nature is to be filed in an envelope marked “Confidential”, to be accessed only with leave of the Court. I further propose to direct the applicants to notify the respondent at the email address for service of the Orders made by the Court today.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 16 November 2010
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