Imperative to Appoint Local Commissioner to Preserve Evidence of Software Piracy at Ex-Parte Stage

The Appellants filed a suit for software piracy, alleging that the Respondents were using unlicensed or pirated versions of Adobe Acrobat software. While the Respondents held 221 valid licenses, the Appellants asserted they were using the product on additional machines without authorization.

The District Judge, Saket Court, dismissed the Appellants' application for an ad-interim injunction under Order XXXIX Rules 1 and 2 of the CPC and the application for appointment of a Local Commissioner under Order XXVI Rule 9 of the CPC at the first hearing.

The District Judge held that there was inadequate material to show a prima facie case and that a Local Commissioner cannot be appointed to collect evidence for a plaintiff.

The court applied the civil procedure mandates of Order XXXIX Rules 1 and 2 (Temporary Injunctions) and Order XXVI Rule 9 (Commission to make local investigations) of the CPC.

Autodesk Inc and Ors. v. A.V.T. Shankardass and Ors. established that in software piracy cases, the appointment of a Local Commissioner is imperative to preserve evidence of infringement that might otherwise be deleted or hidden.

The High Court found that the District Judge failed to appreciate the specific nature of software piracy cases, where evidence is easily ephemeral. Even if the lower court was not inclined to grant an ex-parte order, it should have at least issued notice to the Respondents to answer the allegations.

Regarding the Local Commissioner, the Court rejected the District Judge's finding that such an appointment was merely for "collecting evidence." Relying on Autodesk Inc., the Bench observed that in identical facts, a commission is necessary to seize pirated materials and protect the integrity of the evidence.

The Court determined that a prima facie case was established based on the categorical assertions of piracy and the mismatch between licenses held and actual usage.

The Court appointed two Local Commissioners to search the Respondents' premises in Mumbai, inspect hardware for unlicensed software, and seize/seal CPUs or storage media containing pirated material. The Commissioners were directed to hand over seized material on superdari and submit a report within one week of execution. The High Court directed the District Judge to reconsider the injunction application in light of the Commissioners' report.