Microsoft Corporation (“Microsoft”) is a company that needs no introduction, being globally renowned for designing, producing, marketing and supporting a broad range of computer-related products. The company recently brought a civil action against Act Integrated System Sdn Bhd, alleging them of infringing Microsoft’s copyright in their computer programmes by reproducing and marketing pirated copies without Microsoft’s consent, license or permission.

The case at the Kuala Lumpur High Court was heard by way of affidavit evidence, without cross-examination of the deponents, which made for a highly unusual mode of proceedings. Although there were disputes as to facts, Microsoft complied with the High Court direction, filing affidavits of Microsoft’s Corporate Attorney, a private investigator hired by Microsoft, and a computer technician under the employment of Microsoft, while Act Integrated System filed only an affidavit by its director, Te Peng Keat.

The High Court Judge, however, made his judgement solely on the affidavits of Microsoft’s Corporate Attorney, ignoring the affidavit evidence of Microsoft’s other witnesses, where the affidavit evidence was only to establish the Microsoft’s copyright ownership in Microsoft’s computer programmes. The High Court then dismissed Microsoft’s action. Dissatisfied with the High Court decision, Microsoft appealed to the Court of Appeal where all the affidavits were re-examined.

Here, based on the affidavit by Microsoft’s private investigator, Nur Ezza, it was revealed that she went to Act Integrated System’s premises where one of its employees, Eddie Tan, attended to her and provided a quote for a computer, which she agreed to. According to the affidavit, Eddie Tan said he would load the Microsoft software into the computer and assured her that the computer would be ready for use. He then tested the computer by demonstrating the functionalities of the computer, which was when Nur Ezza saw Microsoft Windows XP (Operating Software) on the start-up screen and the Microsoft Office (Application Software) programmes. She purchased the computer with the infringed copy of the software.

According to Nur Ezza’s affidavit, customers would only receive a warranty for Microsoft Windows XP if they purchased original copies of the software. As hers was a pirated copy, no warranty was given for the software. Act Integrated System also did not provide her with the relevant manuals and certificates of authenticity that would typically be packaged together with Microsoft’s original software.

The computer technician commissioned by Microsoft subsequently conducted an examination on the computer that was purchased by Nur Ezza from Act Integrated System to ascertain if there was an infringement of copyright and found that the computer purchased was loaded with unlicensed Microsoft programmes.

In his defence, Te Peng Keat stated in his affidavit that his shop only sells original copies of Microsoft’s products and was certain the computer sold to Nur Ezza did not contain any hard disk or disk operating system (DOS). Eddie Tan, the employee who made the sale, did not file any affidavits during the proceedings to deny or confirm what was stated by Nur Ezza. Supported by Microsoft’s computer technician’s screen captures, which confirmed Act Integrated System’s act of copyright infringement, the Judge of the Court of Appeal stated that a computer without any software or DOS would not even turn on, and furthermore the explanation given by Te Peng Keat did not make sense as the hard disk is the fundamental essence of a computer.

The appeal was then allowed with costs, an injunction against Act Integrated System, and general damages which will be assessed by the Court where the Judge in his judgement said that the evidence had to be examined in its entirety and not just confined to Microsoft Corporate Attorney’s affidavits. If the High Court had done so, it would probably have decided in Microsoft’s favour.

This case certainly assists Microsoft in warning Malaysian companies who are in the trade of selling or renting computers. That Microsoft went all the way to the Court of Appeal to succeed in this case reflects the importance they place on their Intellectual Property rights. Even if you are a small-time trader, Microsoft may come after you for misuse of its IP rights. It is best therefore to stay on the right side of the law, and only sell original copies of Microsoft’s products!