Software infringement or piracy, appointment of Local Commissioner #indianlaws

Delhi High Court in the present matter namely, Autodesk Inc and Anr. vs. A.V.T. Shankardass and Anr. [AIR 2008 Delhi 167: 2008(37)PTC581(Del)], provided guidelines which the Court may take into consideration while dealing with the question of appointing Local Commissioner in the cases reporting software infringement and piracy matters. Summary of the guidelines as were suggested are as under:

(i) The object of appointment of a Local Commissioner in software piracy matters is not just to collect evidence but to also preserve and protect the infringing evidence. Since the pirated software or incriminating evidence can only be obtained from the premises of the opposite party alone, if there is no an ex-parte appointment of a Local Commissioner there will be probability of such evidence getting lost, removed or destroyed;
(ii) Request coming from aggrieved party for ex parte appointment of a Local Commissioner in such matters is usual and intended to sub serve the ends of justice to ensure that the actual position is not altered;
(iii) The test of reasonable and credible information regarding the existence of pirated software or incriminating evidence should not be subjected to strict proof or the requirement to demonstrate or produce part of the pirated software/incriminating evidence at the initial stage itself. It has to be tested on the touchstone of practicality and the natural and normal course of conduct and practice in trade;
(iv) It may not always be possible for a plaintiff to obtain any admission by employing decoy customers and gaining access to the other party’s premises. Any such attempt may lead to disappearance of the pirated software/incriminating evidence in case said decoy customer is exposed.
(v) Accordingly, visit by decoy customer or investigator should not to be insisted upon as pre condition.
(vi) A report of private Investigator need not be disregarded or rejected simply because of his engagement by the plaintiff and infact it should receive objective evaluation;
(vii) In cases where certain and definite information with regard to the existence of pirated software or incriminating evidence is not available or where the Court have doubts, it may consider asking the plaintiff to deposit cost in Court so that in case pirated software or incriminating evidence is not found then the defendant can be suitably compensated for the obtrusion in his work or privacy.