Microsoft Corporation has recently started filing law-suits for copyright infringement before the Madras High Court. This is probably the first time that Microsoft has moved out of its traditional haunt which is the Delhi High Court. The modus operandi, which we have discussed in previous posts over here and here appears to remain the same. It remains to be seen whether the Madras High Court repeats the errors of the Delhi High Court. However the focus of this guest post by Arun Mohan, who has sent us both these orders, available over here and here, is on the legality of appointing technical experts in the software piracy suits filed by companies such as Microsoft Corporation. This post is a must read for all those of you interested in the idea and execution of Anton Piller orders.
Can civil courts in India appoint technical experts in software piracy suits?
By Arun C. Mohan,
Advocate, Madras High Court
The Madras High Court has granted an exparte order of injunction to Microsoft on 1st February 2012 in CS No 47/2012 to prevent the defendant from using pirated versions of Microsoft windows/office. There was also an exparte order for appointment of an advocate commissioner to visit the premises of the defendant, and to make note of the systems allegedly bearing infringing copies of Microsoft software. The defendant is one M/s Flutronics, Chennai which is engaged in the sale of various computer systems. Microsoft claimed that the defendant was selling laptops having pirated versions of MS Windows and Office, and made a “trap purchase” for the same. Image from here.
I have been keenly reading the various articles on Anton Pillar orders, and the critique thereof in SpicyIP. The focus of this post is specifically upon the “technical experts” who accompany such advocate commissioners to the defendant’s premises.
Past incidents shows the experience of defendants in case of such orders. Their premises are visited by the advocate commissioner, along with a team of anywhere from 5-50 “technical experts”. The “technical experts” access the systems of the defendant, take action such as sealing or seizing hard drives, state the same to the advocate commissioner, who in turn files a report before the Court.
My observation in such cases in Delhi, and now in Chennai has been that the advocate commissioner rarely possesses technical skills to ascertain acts of piracy or to test the veracity of the technical expert’s statements/conclusions. Further, since the appointment is of a singular person, it is usually not possibly to fully assess the extent and nature of piracy of an entire company by an individual.
This is where the role of the “technical experts” kicks in. They claim to aid and assist the advocate commissioner, and provide necessary technical support. However, this in practise seems to suffer gross lacunaes.
My reading of the CPC suggests that there is no role for a technical expert, to accompany such advocate commissioner. This is aggravated by the fact that such technical experts are often on the payroll of the plaintiff, and therefore an unbiased report/support to the advocate commissioner cannot be presumed. There is also the problem of logistics. As the advocate commissioner cannot physically access hundreds of systems, he/she has to take the word of the technical expert to such effect. Experience also shows that the identity/numbers of such technical experts is never disclosed in courts, and the report before the court often belies the extent of involvement by the technical experts. In such situation, presumably the advocate commissioner cannot make an impartial observation, as it is colored by persons who are being paid by the plaintiff. The presumption of bias in the support offered to the advocate commissioner seems to be rather strong. Since the technical experts remain unnamed, they can never be cross-examined by the defendant at the time of trial either. This poses a gaping hole in the evidence, and runs prejudicial to the defendant atleast in the interlocutory stage. The question is also left open as to whether the court warrant granted to the advocate commissioner to enter the defendant’s premises and carry out appropriate action be extended to even the technical experts. If the answer is negative, their entry becomes an unauthorized entry and also amounts to illegal access to systems as per the IT Act.
There are also a host of privacy violation issues as under the guise of “technical experts”, the plaintiff’s employees/agents have unlimited access to a third party’s system. Such access is not monitored, and if sought to be curbed by the defendant, there is omnipresent threat of a “court order”. Since there is only a singular advocate commissioner, he/she cannot monitor as to what is accessed by the technical experts.
As possible solution, could be to follow the American model of sending a neutral forensics firm along with a court bailiff. The obvious fault in this is the lack of such independent forensic firms in India, atleast to the best of my knowledge. My primary grouse remains the obvious bias, and often an approach of bulling defendants, which is caused by the presence of such technical experts. As an aside, the plaintiff in such cases lays down how it had set a “trap purchase”. The plaintiff demonstrates the purchase invoice of the laptop having the pirated software, report of the investigator and the report by an independent technical audit firm as to the presence of such pirated software. The most obvious error to me, seemed to be failure to file the infringing laptop as an material object, or atleast demonstrate it before the Learned Judge. Would that not be the true test to ascertain if there is indeed pirated copies of the software, and confirm the veracity of the various affidavits filed in the “trap purchase”? Even a reading of the various orders of the DHC, suggests failure to show the actual hardware carrying the allegedly infringing software, and evidence of piracy is based on the report given by the plaintiff by an independent firm to such effect. The big question is, is it sufficient?