Over the years the software companies in India have faced innumerable instances of software piracy. Statistics reveal that the prevalent piracy rate in India is close to 69%. To further the enforcement of one's rights, the law provides for the appointment of Local Commissioners upon establishment of a strong prima facie case. The landmark case of Autodesk Inc. & Mr. A.V.T Shankardass & Anr. {2008 (37) PTC 581 (Del.)}, witnessed the the Delhi High Court laying down broad guidelines for the conduct of raids in relation to instances of software piracy.
Microsoft filed four suits against four different parties on the suspicion that they were using pirated software at their workplace, based on the findings of an independent investigator engaged by them. . Investigations were made by asking employees of the defendants for information about the number of computers installed and thereby matching the license numbers of the software. Based on a verification of findings against Microsoft's database a suit was instituted for the violation of copyright before the High Court of Delhi (Microsoft Corporation & Anr. Vs. Dhiren Gopal {2010 (42) PTC 1 (Del)}. In this pursuance, Microsoft prayed for an injunction arguing the possibility of tampering of computers by Dhiren Gopal. They also prayed for appointment of a Local Commissioner so that the defendant could not get any opportunity to delete the pirated software.
The Court opining on the appointment of the Local Comissioner under Order 26 Rule 9 of the Civil Procedure Code noted that the purpose of the appointment of a Local Commissioner is to further the sealing and seizure of the CPU's and hard discs. The Court noted that there have been controversies existent regarding the procedure to carry out the seizure and that the law does allow making of backup copies before the Local Commissioner executes the sealing. The Court stated that this was in view of avoiding any pressure or misuse by the right holders to blackmail or use the alleged infringer's database for any other purpose. The Court stated that the proper procedure would be to get mirror images of the hard disc and get them sealed on the spot.
Further, examining the rationale behind Anton Piller orders, the Judge observed that in various cases, the element of surprise in conducting raids has been heeded thus allowing the same to be conducted without any notice. This was opined to be especially true of software cases, since the software may be deleted easily from the system
Concluding the hearing the single Judge gave directions for deposit of Costs and allowed an injunction. Microsoft was ordered to deposit Rs. 2 Lakh as security, payable to the alleged infringers in case the allegations made against them were proved false. The Judge went on to point out that the Court cannot act as an investigating agency for a party and if the a investigative suits are filed by a party on mere suspicion, he should be asked to deposit costs so that he can be burdened with costs if a false suit has been instituted An ex-parte injunction was allowed with the direction that the Local Commissioner along with a technical expert of Microsoft be allowed to carry out the raid and prepare mirror images of hard discs to be sealed by the Local Commissioner and deposited in the Court.
However, an appeal (Microsoft Corporation and Anr. V. Dhiren Gopal and Ors {2010 (42) PTC (339) (Del) DB}) was filed against the order of the Single judge in view of the possibility of misuse of databases procured during the seizure by Microsoft. And the consequent deposit ordered to be made. Altering this order, the Division Bench allowed three experts to accompany the Local Commissioner and waived off the security deposit ordered to be made earlier.
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