Copyright Infringement Claim Successful By Way Of Application

In the recent decision of Microsoft Corporation v Liu1, the Federal Court granted Microsoft's application in part, finding that the respondent, Mr. Liu, had infringed Microsoft's copyright in five of its computer programs. Given the circumstances of the case, including the respondent's prior infringing activities, the Court awarded statutory damages of $10,000 per infringement and punitive damages of $50,000, for a total of $100,000.

Background

In this proceeding, Microsoft asserted that Mr. Liu had personally infringed its copyright in a number of computer programs by selling unlicensed copies to an investigator employed by Microsoft. Microsoft further asserted that Mr. Liu was also liable for infringement as he had authorized infringement by his co-worker, "Henry".

It is of note that the parties had settled prior copyright infringement disputes regarding infringement of Microsoft's programs, and that as part of an earlier settlement in 2012, an Order was granted on consent enjoining the respondent from any future infringement of Microsoft's computer programs.

Direct Copyright Infringement, But No Authorization of Infringement

Dealing first with Mr. Liu's own acts, the Court held that there was convincing evidence that established that Mr. Liu had personally sold and installed unlicensed copies of Microsoft's computer programs to an investigator hired by Microsoft.

In that regard, Justice Boswell held, "Mr. Liu sold to Mr. McCullough unlicensed copies of the applicant's programs; he personally handled and loaded the programs from a USB memory stick onto the IBM computer purchased by Mr. McCullough." As a result, the Court had "no hesitation in finding on a balance of probabilities that,... Mr. Liu reproduced and copied the applicant's computer programs and sold unlicensed copies of them to Mr. McCullough" and that, "Mr. Liu clearly infringed the applicant's copyright in its computer programs on this occasion."

The Court was unable to arrive at the same conclusion in respect of the allegation that Mr. Liu had authorized his co-worker's infringing acts.

Relying on the Supreme Court of Canada's decision in CCH Canadian Ltd. v. Law Society of Upper Canada2, Microsoft contended that Mr. Liu authorized and was responsible for the infringing acts of his co-worker as "he was personally present and involved by providing the external hard drive from which the unlicensed programs were copied onto the computer."

However, in considering the issue, the...