SupremeCourt

  • Subscribe to our RSS feed.
  • Twitter
  • StumbleUpon
  • Reddit
  • Facebook
  • Digg

Tuesday, March 12, 2013

An outrageous Californian attempt at extra-territorial enforcement of American IP laws

Posted on 1:26 PM by Unknown
Image from here
As reported by several news outlets over the last couple of months, the State of California has filed lawsuits against an Indian and a Chinese textile firm for allegedly using pirated software in their home countries to manufacture textiles which are then exported to the U.S. and in particular California. For some reason we appear to have missed these reports until we read this op-ed. From these reports it appears that the State of California is going to spread this mode of enforcement to other industries including the auto-industry. 

The lawsuit has been filed not under federal American copyright law but under Californian Unfair Competition Law on the grounds that the textiles manufactured using pirated software in countries like India and China provide unfair competition to American textile manufacturers who use legitimate software. I’m yet to get access to the complaint filed by the Attorney General but I think it is safe to say that this lawsuit is pushing at the boundaries of Californian competition law. The relevant provision of the “Business and Professions Code” of Californian law reads as follows: “As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” 

Typically this law operates in a manner similar to the Consumer Protection act, 1986, in India, although it does allow for even businesses to sue each other. The manner in which it is being used in this present case is unprecedented to the best of my knowledge. For those of you interested in reading more on this law, click here. 

Make no mistake – these particular lawsuits have been filed on the goading of the Open Computing Alliance (OCA) and they are nothing but a brazen attempt at extra-territorial enforcement of American IP law despite the fact that IP is a territorial law i.e. Indian copyright law should be applicable to Indian manufacturers operating within India. What makes this issue more brazen is the fact that it has been filed by a State Attorney General despite the fact that such issues of enforcement of IP overseas is usually within the domain of the Federal Government, particularly the Office of the United State Trade Representative. The Californian Attorney General Kamala Harris appears to have some higher political ambitions. 

I term these lawsuits as an outrageous attempt for the following reasons: 

(i) American software companies have the right to file copyright infringement lawsuits against Indian companies in India under the Copyright Act, 1957 and they have been exercising this right for the last 10 years with a high rate of success. Just last year, Microsoft filed about 85 lawsuits before the Delhi High Court, through 3 different law firms, for the enforcement of its copyrights. In fact the International Intellectual Property Alliance (IIPA) has not reported any major problems in enforcing their IP rights in India. If anything they are effusive in their praise of the Delhi High Court’s role in this regard. 

(ii) For an Indian manufacturer, fighting a lawsuit in Delhi itself can be expensive but defending a lawsuit in California will be at least 20 to 30 times more expensive. It is very likely that just the pre-trial expenses will outstrip the entire cost of the export consignment. The cheaper option is to buy the software licences and this is exactly what the Americans are counting on. They hope to create enough fear amongst Indian exporters that they flock to the closest American software company and stock up on software. 

(iii) The more significant fear now is that American software companies operating in India will use such lawsuits to extract not only future licence fees but extortionist damages for prior use of software. They have done stuff like this in India and with the axe of a Californian court hanging over the heads of these Indian companies, they are guaranteed a much higher rate of success.

The brazenness of Americans when it comes to IP enforcement never ceases to amaze but the Indian government needs to make it very clear that such extra-territorial enforcement of American laws will not be tolerated by India. Today it’s the textiles industry, tomorrow it will be the auto-industry and the day after it will be the pharmaceutical industry.
Email ThisBlogThis!Share to XShare to FacebookShare to Pinterest
Posted in Copyright, Enforcement, Software, software enforcement | No comments
Newer Post Older Post Home

0 comments:

Post a Comment

Subscribe to: Post Comments (Atom)

Popular Posts

  • IPAB on Payyannur Ring
    [*S lightly long post] Background: The Intellectual Property Appellate Board (“ IPAB ”), in its recent order in SubhashJewellery v. Payyan...
  • Guest Post: Intermediary liability in defamation cases - Parle, Mouthshut & Visakha cases to clarify the law
    Chaitanya Ramachandran, who has blogged for us previously over here and here , has sent us this excellent guest post analyzing the extent of...
  • Delhi HC rejects the "Hot News" Doctrine: A Summary
    The applicability of the Hot News doctrine was rejected recently in a landmark ruling delivered by Justice Bhat of the Delhi HC. This post i...
  • IP Research Assistant position at IIT, Madras
    Feroz Ali Khader, MHRD IP Chair at the Indian Institute of Technology (IIT) Madras, is looking for research assistants to work on various is...
  • Satyajit Ray's sketches and copyright controversies
    A copyright row appears to have started between the Satyajit Ray Society and the Delhi Art Gallery, that is organising a countrywide exhibit...
  • Dorling Kindersley v. Sanguine Technical Publishers
    A recent Delhi High Court order passed on 21 January, 2013  with respect to copyright licensing has come to our notice. An analysis of the j...
  • Call for Papers: IIT Bombay and MHRD jointly announce the 2nd International Conference on Management of Intellectual Property and Strategy
    The readers may be interested to know that the Shailesh J. Mehta School of Management of IIT Bombay is geared up to host, in collaboration w...
  • SpicyIP Tidbit: ALCS August Distribution
    In the UK, the Authors' Licensing and Collecting Society is an organization run and owned by writers that collects money due to its mem...
  • Aaron Swartz, RIP
    See Cory Doctorow's eulogy here Some of us in India may not have heard of Aaron Swartz, a 26 year old activist who was heavily involved ...
  • Thalappakatti biryani trademark row
    The southern district of Dindigal in Tamil Nadu occupies a special place in the hearts of biryani lovers. In the late 1950s, one Nagasamy N...

Categories

  • 126 (1)
  • 3(d) (4)
  • 3(f) (1)
  • 3(i) (1)
  • 3(k) (2)
  • Academic Writing (1)
  • access (10)
  • access to food (1)
  • access to health (3)
  • AIA (1)
  • AIDS/HIV (3)
  • Antitrust (2)
  • Bajaj v LML (1)
  • Basmati Row (2)
  • Biological Diversity (5)
  • Biologics (2)
  • biopiracy (4)
  • biotech (7)
  • Bollywood (25)
  • Broadcasters Rights (5)
  • Budget (1)
  • business method patent (2)
  • Call for papers (2)
  • Cipla (2)
  • Comparative Advertising (4)
  • Competition law (8)
  • Compulsory Licensing (27)
  • condonation of delay (1)
  • Conference (4)
  • Constitution (12)
  • Contracts (1)
  • Controller's decisions (8)
  • Copyright (112)
  • Copyright Amendment Bill 2010 (23)
  • copyright board (4)
  • Copyright Exceptions (6)
  • copyright office (1)
  • Copyright Rules (2013) (5)
  • Copyright Societies (9)
  • Counterfeiting (1)
  • creativity (1)
  • Cross Retaliation (1)
  • csir (4)
  • d (1)
  • D.U. Photocopy Case (16)
  • Darjeeling Tea (3)
  • Data Exclusivity (2)
  • Database (1)
  • DCGI (2)
  • decompilation (2)
  • defamation (9)
  • Designs (3)
  • Designs Act (3)
  • Differential Pricing (2)
  • Dilution (1)
  • Disabilities (3)
  • Disability (2)
  • DMCA (2)
  • Doha Declaration (1)
  • Domain Names (2)
  • Draft Policy of the Indian Government (2)
  • DRM (1)
  • Drug Regulation (7)
  • education (12)
  • Enercon (1)
  • Enforcement (1)
  • EU (2)
  • ex parte (2)
  • exhaustion (3)
  • Exhaustion of Rights (2)
  • Fair Dealing (8)
  • Fair Use (11)
  • Federal Circuit (1)
  • Fees (3)
  • FICCI (7)
  • FRAND (2)
  • free trade agreement (3)
  • FTA (3)
  • G.I. Registry (4)
  • gene sequences (3)
  • Generic medicine (4)
  • Geographical Indication (14)
  • Gilead (1)
  • Glenmark (5)
  • Gopika (34)
  • Guest post (11)
  • guidelines (1)
  • GWU-CII (1)
  • Herceptin (1)
  • hot news (3)
  • ICANN (1)
  • incremental innovation (1)
  • independence (1)
  • india (5)
  • Indian Government (1)
  • Indian patent litigation (27)
  • Indian Pharma (35)
  • Injunction (10)
  • Innovation (7)
  • INTA (1)
  • Intermediaries (10)
  • internet (11)
  • Internet Access Providers (IAPs) (5)
  • Internet Censorship (7)
  • IP scholarship (3)
  • IP aware (4)
  • IP Course (3)
  • IP Education (1)
  • IP Policy (11)
  • IP update (4)
  • ip writing competition (1)
  • IPAB (34)
  • ipchair (1)
  • IPO (1)
  • IPRS (5)
  • IT Act (1)
  • Journal (2)
  • judicial independence (3)
  • Jurisdiction (1)
  • Kruttika (4)
  • Legal Education (3)
  • Legal Research Tools (1)
  • Legal Scholarship (2)
  • library (2)
  • Licensing (7)
  • Madhulika (20)
  • mathematical methods (1)
  • Media law (3)
  • medical method (1)
  • Merck (4)
  • mhrd ip chair (1)
  • Microsoft (3)
  • Middle Path (1)
  • Moral Rights (2)
  • Movies (18)
  • musical work (2)
  • nanotechnology (1)
  • Natco (3)
  • natco defamation suit (5)
  • natco vs bayer (4)
  • need for transparency (1)
  • Novartis (8)
  • Novartis patent case in India (11)
  • NPEs (2)
  • nujs (1)
  • NUJS Conference (2)
  • Obituary (1)
  • obviousness (7)
  • Off-Topic (2)
  • online course (4)
  • Open Access (6)
  • Open Source (2)
  • Opposition (3)
  • Parallel Imports (4)
  • Parliament (1)
  • passing off (5)
  • Patent (52)
  • Patent act (10)
  • patent agent (5)
  • patent agent exam (9)
  • patent agent exam qualifications (3)
  • patent infringement (5)
  • Patent Licensing (2)
  • Patent litigation (2)
  • Patent Office (19)
  • patent pool (3)
  • Patent Prosecution (7)
  • Patent rules (2)
  • Patent Strategies (8)
  • Patents (9)
  • pegasus (1)
  • Personality Rights (1)
  • Pfizer (1)
  • Pharma (18)
  • Piracy (5)
  • plagiarism (3)
  • Plant Variety Protection (2)
  • post grant (1)
  • Prashant (2)
  • Preventive Detention (1)
  • Price Control (6)
  • prior publication (1)
  • Privacy (3)
  • Prizes (1)
  • public health (3)
  • Public Interest (4)
  • Publicity Rights (4)
  • Publishing (3)
  • radio (2)
  • Rajiv (18)
  • Rectification Petition (2)
  • Rejection (1)
  • research (3)
  • reverse engineering (2)
  • revocation (4)
  • rip (1)
  • Roche (2)
  • Roche vs Cipla (1)
  • Royalty (2)
  • RTI (2)
  • Scholarship (4)
  • section 16 (1)
  • Section 3(d) (7)
  • section 8 (6)
  • shamnad (11)
  • Shan Kohli (4)
  • Shouvik Kumar Guha (30)
  • Smartphones/Tablets (2)
  • Social Innovation (1)
  • Software (10)
  • software enforcement (3)
  • software patent (3)
  • Special 301 Report (1)
  • Spicy Tidbits (6)
  • spicyip (1)
  • SpicyIP Accolades (1)
  • SpicyIP Announcements (9)
  • SpicyIP Case (1)
  • SpicyIP Cases (3)
  • spicyip commiseration (1)
  • SpicyIP Events (11)
  • SpicyIP Fellowship (5)
  • SpicyIP Guest Series (22)
  • SpicyIP Interview (2)
  • SpicyIP Jobs (4)
  • SpicyIP Jobs/General (2)
  • SpicyIP Review (1)
  • SpicyIP Tidbits (11)
  • SpicyIP Weekly Review (27)
  • Statutory Licensing (1)
  • STI Policy 2013 (4)
  • Sugen (3)
  • Supreme Court of India (5)
  • Swaraj (19)
  • Tarnishment (1)
  • Technology (6)
  • Technology Transfer (5)
  • TKDL (5)
  • TPP (1)
  • trade (4)
  • Trade Secret Protection (1)
  • Trademark (59)
  • Trademark dilution (1)
  • Trademark Registry (9)
  • Traditional Knowledge (7)
  • Transparency (5)
  • treaty (1)
  • trial (1)
  • tribunals (2)
  • TRIPS (11)
  • UK (3)
  • unfair competition (5)
  • UNFCCC (1)
  • Universities Research and Innovation Bill (2)
  • US (1)
  • US Patent Reform (1)
  • US Supreme Court (3)
  • viva (3)
  • WIPO (5)
  • Working a Patent (2)
  • Workshop (4)
  • writ (1)
  • WTO (1)

Blog Archive

  • ▼  2013 (364)
    • ►  September (13)
    • ►  August (41)
    • ►  July (36)
    • ►  June (36)
    • ►  May (32)
    • ►  April (51)
    • ▼  March (66)
      • US Department of Justice conducts review of IPXI
      • Public health activists lose challenge against Gil...
      • Bombay HC restrains the release of any trailers/te...
      • SpicyIP Tidbit: Viacom restrained from using 'Naut...
      • Recent decision on Protection of Plant Varieties A...
      • Ericsson sues Micromax over SEPs in 100-crore Pate...
      • Full Bench Delhi HC (Design Act)- Reckitt Benkise...
      • Guest Post: U.S. Supreme Court hears arguments in ...
      • Patent Office publishes final version of Guideline...
      • Joint Committees related to Trademark Matters
      • SpicyIP Weekly Review (March- Week 4)
      • Copyright Constitutionality Challenges
      • Statistics of patent grants in India
      • Breaking News: India's Copyright Amendments Challe...
      • Copyright Rules, 2013 designed to fail the Copyrig...
      • Copy of the Copyright Rules, 2013
      • 'Mad Men' controversy
      • A clarification on the Fox-‘Knockout’ copyright di...
      • The recent AMUL-IMUL trademark controversy
      • India’s patent policy: Big Pharma’s grouse?
      • Pratibha Syntex lawsuit still pending before the D...
      • SpicyIP Tidbit: An IP Thriller from an IP lawyer
      • US Supreme Court Supports Parallel Imports: Lesson...
      • IPAB’s first CL decision, resounding emphasis on p...
      • Government notifies Copyright Rules, 2013
      • SpicyIP Weekly Review (March Week 3)
      • Knock(ed) Out!
      • US Patent Reform - 2013: A brief look at the AIA
      • Breaking News: Second Compulsory Licensing Applica...
      • Zanjeer Remake Row before the Bombay HC
      • Guest Post: Kallam Anji Reddy: 1941 - 2013
      • EU Human Rights Court justifies The Pirate Bay con...
      • Breaking Hot News: Madras High Court strikes down ...
      • DU Photocopy Case: Academicians and Authors expres...
      • Bombay HC: Publication of Examination Report on we...
      • Breaking "Hot" News: A "Star" Win for Unfair Compe...
      • The role played by Microsoft in getting California...
      • An outrageous Californian attempt at extra-territo...
      • Standing Committee Report on ‘The Universities Res...
      • Standing Committee Report on ‘The Universities Res...
      • Spicy IP Weekly Review: March 2nd Week
      • Latest update from Campaign for affordable trastuz...
      • A recent study shows that U.S. firms don’t actuall...
      • A Tantalising Copyright Offer: Lessons from Canada...
      • Auditing the worldwide litigation involving ‘Basma...
      • ‘Rethinking the data exclusivity debate in India’ ...
      • UOI v. Malhotra Book Depot- restoration of trademark.
      • Call for Papers: IIT Bombay and MHRD jointly annou...
      • Guest Post: Eye witness account of India's first c...
      • Guest Post: Eye witness account of India's first c...
      • Bombay High Court – Are courts allowed to examine ...
      • Life of P.I. - Keynote address by Justice Prabha S...
      • SpicyIP Event: Announcing Expert Speaker Panel for...
      • SpicyIP Tidbit: Saregama loses copyright claim for...
      • Guest Post: Book Review - V.J. Taraporevala, Law o...
      • Blocking order issued against six UK ISP's by Engl...
      • Film release strategies and anti-competitive pract...
      • Compulsory Licensing is Not a Bad Word!
      • ‘First set up the labs, then dream the Nobel’
      • Spicy IP Weekly review (March Week 1)
      • December 2012: Controller's decisions at the IPO
      • Patents vs. Patients: Department of Pharmaceutical...
      • SpicyIP Tidbit: ViiV Healthcare collaborates with ...
      • Breaking News: Student Association Impleaded in Ac...
      • Kerala State Central Library digitizes Rare Books ...
      • Bombay High Court Decision on Trademark Infringeme...
    • ►  February (40)
    • ►  January (49)
  • ►  2012 (131)
    • ►  December (29)
    • ►  November (42)
    • ►  October (50)
    • ►  September (10)
Powered by Blogger.