For a brief background to this post, I point readers to two of my previous posts available over here and here, where I discussed an unfair competition lawsuit brought against an exporting Indian textile manufacturer, Pratibha Syntex, by the State of California on the grounds that it was using pirated software, thus giving it a competitive edge over Californian manufacturers who used legitimate computer software.
As I had mentioned earlier, the complaint filed by the Californian Attorney General was delightfully vague on critical details. It only mentioned that Microsoft had filed a lawsuit against Pratibha Syntex for copyright infringement and that during a court-mandated inspection, Microsoft had discovered pirated software worth around Rs. 2.1 crore. There was no mention about the status of the lawsuit before the Delhi High Court although the in para 35, the Attorney General states “Upon information and belief, Defendant Pratibha had not asserted any valid defences as to its use of pirated Microsoft programs.”
I did some digging around on the website of the Delhi High Court and found some of the relevant details of the lawsuit. The case title is Microsoft Corporation and Anr. v. Kanhaiya Singh & Anr. (C.S. (OS) No. 3275 of 2011). The first order in this case, passed on December 22, 20112 by Justice A.K. Pathak can be accessed over here. In this order it is mentioned that the Pratibha Syntex had taken 5 software licences from Microsoft but it was later discovered by Microsoft during undercover investigations that Pratibha Syntex was using around 400 computers. On the basis of this information, the Delhi High Court issued its standard interim injunction/Anton Piller order where Microsoft was allowed to inspect Pratibha Syntex s computers at the following address IGC KHEDA - 454774, Pithampur, Distt. Dhar (M.P). The result of the software inspection is not available online but it appears to me that something went wrong in this case because unlike most of the lawsuits filed by Microsoft in 2011, which have been settled, this is one of the cases which is alive because Pratibha Syntex is putting up a fight. It has filed its defence before the Delhi High Court and this defence is not being taken on record because of a delay but Pratibha Syntex is trying to overcome this delay by seeking a condonation of the delay, according to an order of the Delhi High Court, dated February 27, 2013.
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The real surprise is the fact that according to an order dated March 13, 2013 (co-incidentally the day that I had blogged about this case) available over here, the defendants have filed a criminal miscellaneous application under Section 340 of the Criminal Procedure Code read with Section 195 of the same code. The procedure in these provisions relate to a series of provisions in the Indian Penal Code, which deals mainly with offences related to submission of false evidence or fabricated evidence to a court of law. I’m not sure of the exact submissions made by Pratibha Syntex in its criminal complaint against Microsoft but I will try to get such details.
Returning to the question that I raised in the title to this post, did Microsoft mislead the Californian Attorney General? The reason that I ask this is because in its complaint the A-G states “Upon information and belief, Defendant Pratibha had not asserted any valid defences as to its use of pirated Microsoft programs.” But if you look at the orders of the Delhi High Court that I mentioned above, Pratibha Syntex had been trying to argue this case long before the complaint filed by the Californian Attorney General Kamala Harris. In fact on Sep. 25, 2012 Pratibha Syntex filed an Order 7 Rule 11 application seeking dismissal of the lawsuit. The relevant order can be accessed over here. This was almost 3 months before the Californian A.G. filed her complaint in California.
On what basis then, does the Californian A-G claim that Pratibha Syntex is not putting up a defence? Was this complaint based on information submitted by Microsoft?
It is beyond doubt that this lawsuit in California is an absurd idea because any legal action in California for unfair competition will have to depend on a factual finding of software piracy by Pratibha Syntex in India. The only way for that to happen is if Pratibha Syntex makes such an admission in California or if an Indian court makes a factual finding to the same effect.
From my reading of this Californian lawsuit, it appears that Microsoft is trying to use the Californian lawsuit to bring pressure on Pratibha Syntex to settle the matter. But this is just guesswork. I’m going to try and dig out some more information on this case but before I sign off, another interesting issue: When Justice Pathak gave Microsoft permission to inspect Pratibha Syntex's computers, it was presumably for the purpose of inspecting for only Microsoft software but if you read the Californian A-G’s complaint, there is mention that even Adobe’s software was found on the defendant’s computer. I wonder who gave this information to the Californian A-G?
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