Microsoft Corporation v Tram - [2010] FMCA 480

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MICROSOFT CORPORATION & ORS v TRAM

[2010] FMCA 480

COPYRIGHT – Application for default judgment – no response and no appearance by the respondent – blatant infringement of copyright – assessment of compensatory and additional damages – need for deterrence.

Copyright Act 1966 (Cth), ss.5, 31, 36, 38, 115, 116, 126
Fair Trading Act 1999 (Vic), s.9
Federal Magistrates Act 1999 (Cth), ss.14, 131D
Federal Magistrates Court Rules 2001 (Cth)

Autodesk v Cheung (1990) 17 IPR 69
Columbia Pictures Industries Inc & Anor v Luckins (1996) 34 IPR 504
Fenning Films Services Ltd v Woverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171
Foxtel Management Pty Ltd v The Mod Shop Pty Ltd [2007] FCA 436
Microsoft Corporation v Atifo Pty Ltd (1997) 38 IPR 643
Microsoft Corporation & Ors v Mayhew [2008] FMCA 121

Microsoft Corporation v PC Club Australia Pty Ltd [2005] FCA 1522
Ravenscroft v Herbert & New English Library [1980] RPC 193

First Applicant:

Microsoft Corporation

Second Applicant:

MICROSOFT PTY LIMITED

ACN 002 589 460

Third Applicant:

MICROSOFT LICENSING, GP

Respondent:

Vinh-phuoc "david" Tram

Trading as Tramtek

File Number:

SYG 646 of 2010

Judgment of:

Driver FM

Hearing date:

6 July 2010

Delivered at:

Sydney

Delivered on:

6 July 2010

REPRESENTATION

Solicitors for the Applicant:

Mr G Hansen
Harris & Company

No appearance by or on behalf of the Respondent

ORDERS

(1) The respondent, whether by himself, his servants, agents or otherwise howsoever, be restrained from infringing the first applicant’s copyright in the computer programs described on the Schedule hereto (“Microsoft Programs”) by reproducing or authorising the reproduction of Microsoft Programs or a substantial part thereof without the licence of the first applicant.
(2) The respondent is to pay to the applicants:
a.(a) damages for infringement of copyright pursuant to s.115(2) of the Copyright Act 1968 (Cth) in the sum of $907.25.
b.(b) additional damages pursuant to s.115(4) of the Copyright Act 1968 (Cth) in the sum of $30,000.

c.(3) The respondent is to pay the applicants’ costs and disbursements, fixed in the sum of $13,961.68.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Sydney

SYG 646 of 2010

Microsoft Corporation

First Applicant

MICROSOFT PTY LIMITED
ACN 002 589 460
Second Applicant

MICROSOFT LICENSING, GP
Third Applicant

And

Vinh-phuoc "david" Tram Trading As Tramtek

Respondent

REASONS FOR JUDGMENT

a.1. This decision concerns an application for default judgment on a claim of copyright infringement. The first applicant is Microsoft Corporation (“Microsoft”). Microsoft is a developer of computer software. The second applicant, Microsoft Pty Limited (“MPL”) is a wholly owned subsidiary of Microsoft incorporated in Australia. The third applicant is Microsoft Licensing, GP is the worldwide exclusive licensee of the copyright in Microsoft Original Equipment Manufacturer (“OEM”) programs and a wholly owned subsidiary of Microsoft.
b.2. The respondent has been engaged in the computer retail industry since at least 8 August 2008 under the name of “Tramtek” from the premises Shop 2/284 Hampshire Road Sunshine, Victoria 3020 (see the affidavit of Vanessa Hutley affirmed…

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 Tram

Details

AGLC: Microsoft Corporation v Tram [2010] FMCA 480
Case: [2010] FMCA 480
Decision Date: 6 July 2010

CaseChat Overview and Summary

Microsoft Corporation and others brought an action against Tram for copyright infringement in the Federal Circuit Court of Australia. The plaintiffs alleged that Tram had blatantly infringed their copyright in certain computer programs by reproducing and distributing them without authorisation. Tram did not respond to the proceedings and made no appearance in court. The plaintiffs sought a default judgment, including an injunction, damages, and costs.

The court had to determine whether to grant a default judgment, given Tram’s lack of response, and if so, the appropriate amount of compensatory and additional damages. The plaintiffs argued that the blatant infringement warranted significant deterrence, while Tram did not present any defence or mitigating factors. The court considered the provisions of the Copyright Act 1968 (Cth) and relevant case law to assess the appropriate quantum of damages.

The court found that Tram’s blatant infringement justified the grant of a default judgment. It noted the need for deterrence and the importance of protecting intellectual property rights. The court awarded the plaintiffs damages for the infringement and additional damages to serve as a deterrent. The court fixed the costs and disbursements to be borne by Tram. The judgment included an injunction prohibiting Tram from further infringing the plaintiffs’ copyright and ordered Tram to pay the specified amounts in damages and costs.

Orders

Orders of the court

1. (1) The respondent, whether by himself, his servants, agents or otherwise howsoever, be restrained from infringing the first applicant’s copyright in the computer programs described on the Schedule hereto (“Microsoft Programs”) by reproducing or authorising the reproduction of Microsoft Programs or a substantial part thereof without the licence of the first applicant.

2. (2) The respondent is to pay to the applicants:

a. (a) damages for infringement of copyright pursuant to s.115(2) of the Copyright Act 1968 (Cth) in the sum of $907.25.

b. (b) additional damages pursuant to s.115(4) of the Copyright Act 1968 (Cth) in the sum of $30,000.

c. (3) The respondent is to pay the applicants’ costs and disbursements, fixed in the sum of $13,961.68.

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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