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Malaysia: Microsoft emerges victorious

14th August, 2012

In the case of Microsoft Corporation v Act Integrated System Sdn. Bhd., the Malaysian Court of Appeal revoked the High Court’s decision of dismissing Microsoft’s action against Act Integrated System for infringement of copyright.

Act Integrated System (hereinafter referred to as ‘the Defendant’) is a company incorporated in Malaysia and deals with computer and computer accessories. Microsoft Corporation (hereinafter referred to as ‘the Plaintiff’), in 2008, commenced an action against the Defendant in the High Court for infringing the Plaintiff’s copyright by reproducing and marketing pirated copies of the Plaintiff’s computer programmes without the Plaintiff’s consent, license or permission. The Plaintiff, thus, sought an injunction to restrain the Defendant from infringing its copyright and claimed for general damages.

The High Court held that there was no copy infringement and dismissed the case.

Microsoft appealed the decision at the Court of Appeal. In the decision that was published recently, the Court of Appeal has commented that the High Court Judge, rather unusually, directed the case be heard by way of affidavit evidence, in lieu of a normal trial where witnesses are called to give oral evidence and are cross-examined and reexamined. The Court of Appeal acknowledged this to be an irregular procedure as none of the parties had applied for this mode of proceeding.

The Plaintiff filed and served five affidavits: three affidavits of Jonathan Selvasegaram who is the Plaintiff’s corporate attorney, one affidavit of Nur Ezza, a private investigator engaged by the Plaintiff and one affidavit of Izanee Ariffin, a computer technician engaged by the Plaintiff, while the Defendant filed and served two affidavits of Te Peng Keat, a director of the Defendant.

Nur Ezza, as recorded in her affidavit, went to the Defendant’s shop in 2006 and agreed to purchase a computer for RM1100.00 (approximately USD360.00) from Eddie Tan, an employee of the Defendant. According to Ms. Ezza, Mr. Tan had loaded the computer with Microsoft’s software including Microsoft Windows XP and Microsoft Office. The affidavit states that Mr. Tan told Ms. Ezza that the software installed in the computer was a pirated copy for which she would not receive a warranty. Further, Mr. Tan did not provide Ms. Ezza with the relevant manuals and certificates of authenticity that would normally be packaged with Microsoft’s original software.

The Plaintiff engaged Izanee Ariffin, a computer technician, to ascertain whether the computer purchased by Mr. Ezza contained pirated copies of Microsoft’s software or not. The technician confirmed in his affidavit that the computer purchased by Ms. Ezza was loaded with unlicensed copies of Microsoft’s software.

On the other hand, Te Peng Keat claimed in his affidavit that his shop only sells original copies of Microsoft’s products. Mr. Peng Keat further asserted that the computer sold to Ms. Ezza did not contain any hard disk or operating system.

The High Court, in its judgment, stated that the Plaintiff’s case rests solely on the affidavits of Jonathan Selvasegaram. The High Court had agreed with Mr. Peng Keat that the computer purchased by Ms. Ezza did not contain any hard disk or operating system, which, according to the Court of Appeal, seemed bizarre as the very essence of the computer is the hard disk where the computer data is stored.

The Court of Appeal held that as Mr. Izanee Ariffin had captured screen shots, the computer must contain any software or DOS otherwise the computer would not have turned on. Taking into account the affidavits of Ms. Nur Ezza and Mr. Izanee Ariffin, the Court of Appeal overturned the High Court’s judgment and held the Defendant guilty of copyright infringement. The Court of Appeal’s decision included an injunction against the Defendant and general damages to be accessed by the High Court.

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