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India’s software industry has shown tremendous growth over the years today, and is amongst the most evolved software engineering hubs of the world. Despite positive growth momentum increasing software innovation emanating from India, the country still grapples with the pervasive problem of illegal distribution and sale of copyrighted software applications coupled with gross misuse of software licenses. In 2014, BSA | The Software Alliance in its annual ‘Global Software Survey’ reported that 60 percent of the software installed on PCs in India was unlicensed.[1] The ripple effects of this malpractice, go beyond the software publishing industry, depriving local distributors and service providers of precious earnings that create jobs and generates new tax revenues. On the back of software license violation, comes the issue of malware. IDC’s latest findings indicates that India’s high 39 percent malware encounter rate is correlated with the 60 percent unlicensed software rate in the country.[2]

Rightful owners and legal practitioners have been collaborating continuously to reduce substantially the use of unlicensed software in India through legal remedies enforced through the Courts of law.[3] By far, the Indian Courts have been receptive to these efforts and recognize the investment of time, money and labor it takes to produce some of the technology we use today. Simultaneously, the courts also take a strong view of the lengths software infringers go to maintain and grow their illegal business.

We are progressively seeing the strengthening of infringement laws to address the fact that reducing the use of unlicensed software stimulates spending throughout the economy— and the faster software theft is addressed, the greater the benefit.

In wake of the new Copyright Amendment Act, 2012[4], the Delhi High Court on 31st May 2012 passed a landmark Order in Sony Computer Entertainment Europe Ltd. Vs. Harmeet Singh & Ors. MIPR 2013 (1) 0101 for grant of an Ex-Parte injunction against the Defendants from inter alia circumventing the technological protection measures—built in the PlayStation gaming consoles—to enable them to sell counterfeit/unlicensed gaming software, or alter the consoles in such a manner that may amount to infringement of Sony’s trademarks.[5]

The Defendants in the case had been—for a minor additional cost—selling/offering for sale Sony’s PlayStation 3 gaming consoles after physically tampering with the internal machinery of the gaming consoles to modify the original equipment of the Plaintiff so that infringing gaming software could be run on them. This was possible with the “Jailbreak” software that would break through the internal security features of the console and enable it to use unlicensed versions of gaming software.

The Court arrived at its decision by determining that:

  1. The original machines were modified without the Plaintiff’s consent; and
  2. The Defendants infringed the Plaintiff’s copyright by commercially making available pirated gaming software without acquiring a license or consent of the Plaintiff.

In addition to the ex-parte order, the Court found it fit to appoint 3 local commissioners to visit the premises of the Defendants and inspect the computers, CDs and any other storage media with technical experts and representatives of the Plaintiff to make an inventory of the Plaintiffs software or the Jailbraking software itself. The Local Commissioners had the right to seize and seal every such computer, hard disk, CD or other storage media found to contain unlicensed software programs.

Indian Courts Receptive To Quality Control Measures Enforced Through Trademarks

The PlayStation Order has been a substantial advancement in the law as it takes into account the issue of curtailing software piracy along with a corporation’s ability to ensure the quality of its products, and thereby the security of its customers and the good itself. This had been similarly observed in the Cool Water Case[6] where the Second Circuit of the United States Court of Appeals held that a claim of trademark infringement will accrue in favour of the rights owner if the infringer has interfered with the rights owner’s ability to control the quality of its goods, even if the owner of the right cannot show any actual deterioration in the quality.

Adobe’s Experience

Building on the experience of the PlayStation Case, the Delhi High Court has also had the opportunity to deliberate on the issue of circumvention of technology protection measures with respect to software programs. The common practice of having technical safeguards to prevent unlicensed users from using a software program gained legal recognition when the Hon’ble court granted an ex-parte ad interim injunction restraining the use of unlicensed programs based on a Software Assent Management audit report which revealed the use of ‘cracks’ and ‘keygen’ to circumvent such TPMs.

The order of the Delhi High Court in this Adobe Case (Adobe Systems Inc. & Anr vs. Arun Jain and Ors.; CS(OS) No. 166 of 2014)[7] is significant for the reason that the court not only recognizes the circumvention of technological protection measures as a prima facie proof of copyright infringement in software piracy cases, it also sets the precedent for deeming the presence and use of ‘keygens’ and ‘crack’ software programs as not only acts of circumvention of technology protection measures but also as acts of copyright infringement.

While the matter is under judicial consideration and further comments as to the merits of the case would be premature, the precedents set by the Hon’ble Delhi Court indicate a favorable trend for rights holders to enforce their intellectual property rights through both legal mechanisms as well as through technological means.


Laws governing the protection of intellectual property rights are robust and equip the Indian Courts to charge those in the business of dealing in pirated software programs and tampering with technologies protecting the intellectual property. A speedy enforcement of intellectual property rights, especially in the software industry is critical as software has become an indispensable tool of production in the modern economy. Increasing use of software is driving national and global economic growth, and the use of properly licensed software is a more effective driver than unlicensed software.[8] Governments therefore should take every opportunity to promote lawful software use. Combined with strong laws and enforcement mechanisms, they should also raise public awareness of the risks associated with the use of unlicensed software and the benefits of managing software assets carefully.

[2] Unlicensed Software and Cybersecurity Threats – January 2015; http://globalstudy.bsa.org/2013/Malware/study_malware_en.pdf

[3] After a drop of two places in 2013 India features at 12 in VI Labs’ 2014 list of the Top 20 Countries for Software Piracy and License Misuse; http://www.vilabs.com/news-section/code-confidential/top-20-countries-software-piracy-2014

[4] The Copyright (Amendment) Act, 2012; brought into force on 7th June 2012; http://www.wipo.int/edocs/lexdocs/laws/en/in/in066en.pdf

[5] Sony Computer Entertainment Europe Ltd. Vs. Harmeet Singh & Ors. MIPR 2013 (1) 0101

[6] Zino Davidodd SA Vs. CVS Corporation 571 F.3d 238 (2d Cir. 2009) http://www.leagle.com/decision/In%20FCO%2020090714096.xml/ZINO%20DAVIDOFF%20SA%20v.%20CVS%20CORP

[7] Adobe Systems Inc. & Anr vs. Arun Jain and Ors.; Delhi High Court [CS(OS) No. 166 of 2014] order dated 20th January 2014

[8] Competitive Advantage: The Economic Impact of Properly Licensed Software; http://www.bsa.org/~/media/Files/Research%20Papers/BSAINSEADSoftwareValueStudy.pdf

About the Author:

Shantanu Sahay is a Partner at Anand & Anand Advocates and in-charge of the IT & E Commerce Practice Group. As part of his work profile as a partner, Shantanu represents and advices lot of Information Technology Cum Software Companies such as Microsoft, Siemens, Dassault Systemes etc. Shantanu also handles general as well as strategic litigation for his clients. He also indepthly advices various start up and SME companies towards their compliance and other regulatory activities in India with major focus on IPR laws as well as laws relating to Information Technology.  He was admitted to the Bar in 2007 and has been working with Anand & Anand Advocates since August 2007. He graduated from the National Law Institute University, Bhopal, in 2007. Mr Sahay specializes in IP litigation, with a focus on software piracy and ant counterfeiting issues. He has contributed to a number of publications, including the Journal of Intellectual Property Rights.

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