Microsoft Corporation v Melgar - [2013] FCCA 344

FEDERAL CIRCUIT COURT OF AUSTRALIA

MICROSOFT CORPORATION & ORS v MELGAR

[2013] FCCA 344

Catchwords:
COPYRIGHT LAW – Breach of applicant’s copyright in software programs – assessment of compensatory damages under s.115(2) of the Copyright Act 1968 (Cth) – compensatory damages of $164, 624 awarded – assessment of additional damages under s.115(4) of the Copyright Act 1968 (Cth) – additional damages of $300,000 awarded.
PRACTICE & PROCEDURE – Whether default judgment should be entered pursuant to rule 13.03B of the Federal Circuit Court Rules 2001(Cth) – default judgment entered pursuant to rule 13.03B of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03B;
Copyright Act 1968 (Cth), ss.114, 115;

Civil Dispute Resolutions Act 2004 (Cth), s.4.

Microsoft Corporation v TYN Electronics Pty Limited (In Liquidation) [2004] FCA 1307;
Autodesk v Cheung (1990) 17 IPR 69;
Fenning Films Services Ltd v Woverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171;
Microsoft Corporation v PC Club Australia Pty Ltd [2005] FCA 1522;
Raben Footwear Pty Ltd c Polygram Records Inc (1997) IPR 417;
Microsoft Corporation v Tram [2010] FMCA 480;
Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135;

Sullivan v FNH Investments Pty Ltd [2003] FCA 323;

First Applicant:

MICROSOFT CORPORATION

Second Applicant:

MICROSOFT PTY LIMITED

Third Applicant:

MICROSOFT LICENSING, GP

Fourth Applicant:

MICROSOFT REGIONAL SALES CORP

Respondent:

JOSE ANTONIO CACERES MELGAR

File Number:

SYG 2159 of 2012

Judgment of:

Judge Emmett

Hearing date:

26 March 2013

Date of Last Submission:

26 April 2013

Delivered at:

Sydney

Delivered on:

24 May 2013

REPRESENTATION

Solicitors for the Applicant:

Mr Grant Hansen, Holman Webb

No appearance by or on behalf of the Respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2159 of 2012

MICROSOFT CORPORATION

First Applicant

MICROSOFT PTY LIMITED

Second Applicant

MICROSOFT LICENCING GP

Third Applicant

MICROSOFT REGIONAL SALES CORP

Fourth Applicant

And

JOSE ANTONIO CACERES MELGAR

Respondent

REASONS FOR JUDGMENT

Heading 1 style

Introduction

1.The First Applicant is the owner of copyright in numerous computer software programs (“the Microsoft Programs”).
2.The Second Applicant is a wholly owned subsidiary of the First Applicant and provides marketing and technical support on behalf of the First Applicant in Australia in relation to the Microsoft Programs.
3.The Third Applicant is the worldwide exclusive licensee of the copyright in the Microsoft Programs and is a wholly owned subsidiary of the First Applicant.
4.The Fourth Applicant is a wholly owned subsidiary of the First Applicant and operates the Microsoft Store in Australia.
5.The Respondent has operated as a sole trader under an Australian Business Number (ABN) for the periods 5 June 2000 to 15 August 2001, and 17 July 2002 to date. The Respondent has carried on a business as a retailer of computer hardware and software since at least 26 March 2007. In carrying on his business, the Respondent utilised a number of auction websites, though which he acted as a…

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 Melgar

Details

AGLC: MICROSOFT CORPORATION & ORS v MELGAR [2013] FCCA 344
Case: [2013] FCCA 344
Decision Date: 24 May 2013

CaseChat Overview and Summary

Microsoft Corporation (Microsoft) and Mr Melgar were the parties in proceedings before Emmett J of the Federal Court of Australia. The dispute concerned the alleged infringement of Microsoft's copyright in its Windows operating system software. Mr Melgar was accused of making unauthorised copies of the software and distributing them.

The primary legal issue before the Court was whether Mr Melgar had infringed Microsoft's copyright in the Windows operating system. This involved determining whether the copies made and distributed by Mr Melgar were indeed unauthorised, and whether such actions constituted infringement under the relevant provisions of the Copyright Act 1968 (Cth).

Emmett J found that Mr Melgar had indeed infringed Microsoft's copyright. His Honour reasoned that Mr Melgar had made and distributed copies of the Windows operating system without the necessary authorisation from Microsoft. The Court applied the principles of copyright law, establishing that the unauthorised reproduction and distribution of software protected by copyright constitutes infringement. The evidence presented demonstrated that Mr Melgar's actions fell within the scope of prohibited conduct under the Copyright Act.

Orders