India: Civil and Criminal Remedies in Copyright Infringement - Part 5 - Peculiar Proble

Last Updated: 24 September 1996
The copyright industries where piracy creates massive economic impact are: (1) computer software 5 (2) book publishing, and (3) the entertainment industry which includes films and records.

Now, as far as computer software is concerned, it is a unique trade because software unlike other goods is very easy, cheap and quick to copy and the copying is perfect. There is no difference between the original and the spurious except in the packaging. The other characteristic of software is that it is very easy to destroy so that if you raid a premises and the defendants are alerted, it may take them not more than a few seconds to destroy software or to erase their entire hard disk. The other thing about software is that software unlike books is not sold but licensed and a software license is a very typical license called the shrink-wrap license simply because the term of the licenses are contained in a polythene packaging called a shrink-wrap which normally says on the top that if a buyer opens the packaging then he would be deemed to have agreed to all the terms and conditions of the license and that if the buyer is not agreeable to such terms and conditions, he should not open the packaging and return the product to the seller. In ProCD vs. Zeidenberg was a recent case in United States which upheld the validity of the shrink wrap license and upset the Court of Appeal decision which had held that such licenses cannot be valid because the buyer has not been alerted to what the terms and conditions are before he made the purchase.

Be that as it may, it is a trade practice to have these shrink wrap licenses and one of the usual terms of the license is that the buyer of original. software is entitled to keep only a limited number, normally 2 copies of the software for archival purposes or for back-ups so that in case the original gets destroyed he has a back-up.

Therefore, if you want to raid some one and he produces an original piece of software with a license and he has one back-up set and one original, there is nothing wrong with that and your raid would fail. It therefore becomes extremely difficult since most pirates just keep the originals and when an order is placed with them they make the copies against the order and adopt all kinds of distribution systems, sometimes delivering the goods in the street sometimes at the buyers premises, receiving the orders only on fax.

In the case of other goods, where for example if you are dealing in pirated jeans, pirated band bags, or even pirated books, you will find a whole lot of visible copies stacked at some premises and if your investigation has been good enough then your job is to reach out to where the goods are being stacked and the place where the duplication job is being done. But in software that is not tile case- There are no goods which are stacked. Copies are made and the aforesaid distribution methodology is followed which makes the enforcement far tougher.

In this case, therefore, it is essential to place a decoy order and in an Indian case for the first time in TBM vs. Kamal Dev, the court was compelled to modify the Anton Piller order so that the court commissioner was empowered to pose as a decoy customer to place an order for the goods, to take the delivery, to make the payment and to witness the whole sales transaction before his eyes. And that is the variation of the Anton Piller order. If that were not done, the normal search and seizure would not have been successful because the police would have found nothing but the original and no copies. The variation to the Anton Piller Order by which a court commissioner can go in cognito as a decoy customer is an extremely important variation which went a long way in combating piracy given the special difficulties posed by computer software. The order has been successfully followed in several other subsequent cases of Microsoft, Novell, Autodesk and Tata Consultancy Services.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


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