During the course of some recent research I had an opportunity to peruse the ex-parte injunctions granted to Microsoft in the 32 law-suits that it has filed in the year 2011. While several of the ex-parte orders were unavailable on the High Court website, all of the remaining orders that were available were passed by the Hon’ble Justice Gita Mittal, who is the senior most judge on the original side of the Delhi High Court. It thus appears that the Delhi High Court is assigning all Microsoft matters to only one judge. The first benefit of this practice is that it ensures consistency in all orders and the second benefit lies in the fact that this allows judges themselves to develop an expertise in that particular area of law. It is very interesting to note that Justice Mittal has developed a standard form for all ex-parte orders in Microsoft cases (A sample is available over here) in order to ensure consistency. The ‘standard form’ seems to be based on the earlier experiences of the High Court in dealing with such cases. All her orders are identical with only the names of the defendants being altered. Most importantly the ‘standard form’ itself is remarkably nuanced and very protective of the defendant’s rights.
A couple of years ago we had carried an anonymous post on the manner in which Microsoft carried out its ‘judicially sanctioned’ software raids. That post was quite an eye-opener for several people including me. The most controversial aspect of that post were allegations that Microsoft was getting the Delhi High Court to pass orders for sealing of entire computers that were found to be using pirated software. This is contrary to the spirit of ‘anton piller’ injunctions which only allow for the preservation of evidence. The sealing of entire computers of the infringer provided Microsoft with extra-leverage during the subsequent negotiations and as a result the infringer may have been forced to settle the dispute at a higher cost than if his computers had not been sealed. (Microsoft’s response to this post is available over here) Shamnad has also carried an interesting post over here on the optimum balance for carrying out software piracy raids, in which he criticizes the Delhi High Court for failing to protect the interests of the defendant.
Justice Mittal’s ‘standard form’ for injunctions, in contrast to some of the earlier orders of the Delhi High Court, lays down precise instructions that are to be followed by the Commissioner executing the Court’s orders. The ‘standard form’ does not allow for sealing of computers themselves, except in certain situations of non-co-operation by the defendants. The order also makes it very clear to the defendant that it can seek to resolve the dispute through the Mediation Centre attached to the Delhi High Court, apart from the option of purchasing further licences.
Hopefully the Delhi High Court will evolve such a format for the copyright infringement suits filed by PPL and IPRS.
