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The Dangerous Trend of Ex-Parte Orders
According to a report in Business Standard a software vendor Final Quadrant Solutions, has sued Travel Guru, an online ticketing company for infringing on its copyright. According to the preliminary reports, Quadrant solutions had provided a solution which was being used by Travel Guru and Travel Guru decided to terminate the contract and replace the software with a version of its own. Travel Guru contends that they terminated the service due to lack of proper service and the new version is developed in Java platform as against the earlier version which was in dot.net platform.
However it is understood that the company has been restrained from using the allegedly infringing software until next date of hearing in an exparte order passed by a Court in Delhi.
Copyright infringement cases in Cyber Space sector have been of recent origin in India. There are several difficulties in correctly interpreting the laws and defining "infringement.". In many cases, "What You See may not be What it is". Hence it is prudent to hear both cases of the story before coming to a decision.
In this context, the trend of "Ex-Parte" order in the case leading to closure of business of the accused based on nothing but the complaint is alarming. We may recall that in a similar case in Chennai some time back, an ex-parte order was issued against a BPO ordering sealing of certain servers.
While we do presume that the Honorable Court would have considered all angles before coming to its learned view, this being an Ex-Parte order, the possibilities of the Court having been misled appear to be high. (In the Chennai Case, the Court did make such an observation in a subsequent hearing).
It appears that accusing vendor had little to lose if the injunction had not been given until the next hearing while the accused has to suffer by closure of his online booking.
It is possible that the complainant may be claiming a "Patent Right" through a "Copyright Process" or is misrepresenting a "Page Design Copyright" as a "Source Code Copyright". The Court needed to consider all these angles before arriving at a final decision.
It is unlikely if the Court had an opportunity to examine beyond the front end screen, whose print outs might have been given by the complainant to show that they are similar before and after the termination of the software contract.
The need to grant an immediate injunction particularly in an ex-parte order is therefore a highly exceptional treatment given by the Court to the case.
If the contention of the defendant as reported that the new software is in Java platform as against the earlier dot.net platform is correct and the Court has jumped to a conclusion of prima facie software infringement and meted out a temporary punishment to the accused, it needs to penalize the complainant who pressed for the order if the decision is later found to have been a mistake.
If the Courts are not careful, they are likely to be deliberately misled by counsels who present a one sided picture. While this is their right when the defendant is having an opportunity to defend himself, in pressing for an Ex-Parte order, the counsel has to assume a role of an impartial judge himself before requesting the Court to issue an order without listening to the other party.
If the Court decides to come to an interim decision without hearing the defendant's view there will be occasions where the decisions will be based on incorrect and deliberately twisted facts. Courts will then need to correct their own mistakes by passing counter fines on the complaining party for pressing for an interim order where it was not warranted.
We may recall that in the Sanjay Dutt case, the accused of a serious crime was granted relief solely for the reason that he had not received a copy of an earlier judgment which he has a right to appeal. We can compare this with the current case where Travel Guru was denied an opportunity to even present its case before a damning judgment was passed to understand whether the need for temporary relief was necessary or not.
While we donot express any support to any party who may be infringing copyright which is a legitimate right of another party, we do feel that the decision of "Interim Injunction" as an "Ex parte" order needs to be reviewed immediately. Otherwise this could turn out to be a precedent which will be misused by disgruntled software vendors whenever their contracts are discontinued.
Naavi
Director
Cyber Crime Complaints and Resolution Assistance Center (CCCRAC)
August 29, 2007
