Shashank Shekhar Mishra v Ajay Gupta

Delhi High Court

 5 September 2011

CS(OS) No. 1144/2011

The Judgment was delivered by : Hon'ble Justice V. K. Jain

This is a suit for permanent injunction, rendition of accounts, delivery up of the infringing material and damages. The plaintiff, who is studying in Sri Ram Murti Smarak Institute of Technology, Barielly, claims to be a tech savvy professional with vast experience in the field of web technologies including PHP, HTML, CSS, Java Script, J-Query, Wordpress, Photoshop etc. According to plaintiff, he is the author of "Quizpro Wordpress Plugin", using which the Wordpress users can easily use quiz on their Wordpress Blogs or Wordpress driven websites. It is alleged that on 9 th November, 2010, the plaintiff purchased a laptop for a consideration of Rs.34,100/- and used it extensively for the purpose of web designing as well as doing and processing various technology related activities on the internet. He was also storing various user IDs, passwords and other data in the laptop. Confidential financial information of the plaintiff including details of his mother's bank account as well as credit card information belonging to his cousin brother was stored in the laptop. He was also using the laptop for creating, storing and retaining the original web designing templates, designs and styles. The plaintiff claims to be the author of his original web designing templates, designs and styles, software, computer programme, software source code etc., the same being original "literary works" within the meaning of Section 2(o) of Copyright Act, 1957. The source code according to the plaintiff constitutes confidential data and information which is kept under security so as to ensure its confidentiality. He claims to have contributed immensely through his skill, labour and knowledge, in developing and producing the aforesaid templates, designs, styles, softwares, source codes etc. The plaintiff claims to have been very active on e-commerce website www.algulfnet.biz and also claims to have got various accounts therein. www.algulfnet.biz is a service driven website which offers netizens the opportunity to participate in surveys and earn online and also purchase subscription for Surveys Online Today E-Zine along with Panelist Training. The aforesaid website provides service in many forms and for a variety of purposes. The website works on the superstructure of ePins, wherein one pin is equivalent to Rs.3600/- of actual commercial value. The website allows the user, who has generated a minimum specified number of points, to monetize those points and redeem them for actual money, one point being equivalent to Rs.50/-. According to the plaintiff, he had accumulated thousands of points in his various accounts by participating in various surveys conducted by www.algulfnet.biz and had generated 212 e-Pins which are being displayed in his two accounts. Thus, these e-pins are virtual data and information in the electronic form, which are capable of being translated into physical money. The value of these 212 e-Pins is alleged to be Rs.763200/-. The case of the plaintiff is that on 25th April, 2011, the defendant who was known to him, he being a user of the website www.algulfnet.biz, barged into his room along with 2 anti social elements and snatched away his laptop which contained confidential data and information including sensitive personal data, personally identifiable information, banking and credit card details as well as his 212 e-Pins. He also threatened to make public all photographs, messages etc. so as to tarnish the reputation of the plaintiff. It is alleged that the laptop, snatched by the defendant contained plaintiffs templates and designs, word press themes designed in PHP technology, credit card information of his cousin brother, his photographs with friends and colleagues, a text and excel file of 212 e-Pins, usernames and passwords of 52 extra algulf accounts, usernames and passwords of the email accounts and other websites, usernames and passwords of the server and the plaintiffs 11 websites hosted by the plaintiff, plaintiffs PHP source codes of computer software, pan card details and ICICI bank account details of his mother, private messages, admin passwords of the website which the plaintiff had developed, user name and password of the plaintiff for face book page as well as his user name and password for the website www. Go daddy. com. The plaintiff has sought injunction restraining the defendant infringing his copyright carrying out any business or website containing the copyright material belonging to the plaintiff and from transferring the aforesaid copyright material to any person. He has sought an injunction restraining the defendant from downloading, extracting, distributing, transmitting, publishing, releasing or disclosing the personal, confidential data and information of the plaintiff. He has also sought mandatory injunction directing defendant to handover the original laptop of the plaintiff to him. The plaintiff has also sought delivery up of all CDs, inlay cards, hard disks etc. containing the pirated material. Rendition of accounts has also been sought by the plaintiff amounting to Rs.20,10,000/- . The defendant was proceeded ex parte on 7th July, 2011 as he did not appear despite service. In his affidavit by way of ex parte evidence, the plaintiff has supported on oath the case set up in the plaint. I see no reason to disbelieve the un-rebutted testimony of the plaintiff and therefore hold that the defendant had snatched his laptop containing the information detailed in his affidavit by way of evidence.Section 2(o) of Indian Copyright Act, defines "literary works" to include computer programmes, tables and compilations including computer "literary data bases. Section 13 of the Act, to the extent it is relevant, provides that copyright subsists in original literary works. Copyright, in terms of Section 14 of the Act means, the exclusive right, in case of computer programme, to reproduce the work in any material form including its storage in any medium by electronic forms, issue of copies of the work to the public not being copies already in circulation, to perform work in public or communicate it to the public, to make any translation or adoption of the work and to sell or to give on commercial rental or offer for sale or for commercial rental any copy of the computer programme. Section 17 of the Indian Copyright Act, to the extent it is relevant, provides that the author of the work shall be the first owner of the copyright therein. Therefore, the plaintiff holds copyright in the computer programmes which he claims to have authored and which are stated to have been stored in the software which the defendant snatched from him. The defendant has no right either to use the computer programme authored by the plaintiff himself or to make that work available to any other person whether for consideration or otherwise. If the defendant uses the work authored by the plaintiff or provides its copies to any person without license from the plaintiff, he would be infringing the copyright of the plaintiff in the work authored by him, since exclusive rights to do such an act is conferred upon the owner of the copyright alone. The defendant has no legal right to transfer the literary work authored by the plaintiff to be used by any other person either for consideration or otherwise and any such act on his part would amount to infringement of the copyright which the plaintiff holds in the aforesaid works. The plaintiff, therefore, is entitled to injunction restraining the defendant from infringing the copyright of the plaintiff in the literary work authored by him including the computer source Code of the Software Quizpro Wordpress plugin, by using the same himself, transferring/assigning it to any other person, making and/or providing its copies to any person, reproducing it in any form selling or giving it on rent and distributing, transmitting, publishing or disclosing the same to any person or in any other manner. It has come in evidence that a lot of personal information of the plaintiff, his mother and his cousin was also stored in the computer which the defendant snatched from him. This information included vital financial data relating to bank account of the mother of the plaintiff and credit card account of his cousin, all of which has potential of being misused. The computer stolen by the defendant also contained private messages and personal photographs of the plaintiffs with his friends and colleagues which he would not like to share with any outsider including the defendant. The privacy of the plaintiff has already been invaded by the defendant snatching the laptop containing the above-referred private information since he thereby had access to that private information of the plaintiff. The defendant has no right to part with that information to any person and thereby give them an opportunity to invade the privacy of the plaintiff. The plaintiff, therefore, is entitled to an injunction restraining the defendant from parting with the aforesaid information to any person as also from using it in any manner. The defendant has no legal right to retain the laptop of the plaintiff which contained data which is of vital importance and immense value to him. He is bound in law to return the aforesaid laptop to the plaintiff without destroying or erasing the information stored therein. Coming to damages, as noted earlier, the laptop stolen by the defendant contained vital and important data as also the computer programme authored by the plaintiff. The data stored in the laptop stolen by the defendant included text excel file of 212 e-Pins which can be sold for Rs.3,600/- per Pin and, therefore, is worth Rs.7,63,200/-. The plaintiff must have suffered a lot of mental agony and anxiety on account of theft of the computer programme authored by him as well as all important data which was stored in the laptop. He would always remain apprehensive and live under a constant fear that the data which he had stored in the laptop may be misused either by the defendant or any other person who is able to have access to it, causing substantial financial loss to him besides mental trauma, agony and anxiety, which he is beyond to suffer in case that data is used. The anxiety and mental trauma of the plaintiff on account of his being deprived of the work authored by him needs to be appreciated taking into consideration the tremendous effort which he must have made in developing that computer programme. The right to privacy has been recognized as a valuable right of an individual which is implicit in his right to life and liberty which is guaranteed by Article 21 of theConstitution. The right of privacy does encompass and afford protection of personal intimacies of family, marriage, friendship and other matters which are of a private nature. It is a right to be let alone and everyone is entitled to safeguard his privacy irrespective of the kind of life he is leading. No one has a right to peep into the private life of another person without his consent and if he does so, he would be violating the right to privacy of the person concerned and would be liable to pay damages in an action under the law of torts. The right to privacy has also been recognized by the European Convention of Human Rights, Article 8 of which provides that everyone has the right to respect for his private and family life, his home and his correspondence. Even a public authority has no right to interfere with his privacy except in accordance with law and except to the extent it is necessary in the interest of national security, public safety and public order. Monetary or pecuniary compensation is widely recognized as an appropriate and effective remedy for infringement of right to privacy, whether by State or by private individuals. Though Section 43 of the Information Technology Act, 2000 provides for payment of damages by way of compensation in case of theft of a computer source Code used for a computer resource with an intention to cause damage, for accessing or securing access to a computer or computer resource as well as destroying, deleting or altering any information stored in a computer resource, it does not provide for payment of damages for theft of data other than the computer source Code used for a computer resource. Hence, the jurisdiction of a Civil Court is not excluded under Section 61 of the Act. Order For the reasons given in the preceding paragraphs, a decree for permanent injunction is passed restraining the defendant from infringing the copyright of the plaintiff in the "literary works" authored by him including the computer source code of the Software Quizpro Wordpress plugin by using the same himself, transferring/assigning it to any other person, making and/or providing its copies to any person, reproducing it in any form, selling or giving it on rent and distributing, transmitting, publishing or disclosing the same to any person or in any other manner. He is also restrained from parting with or disclosing the information of the defendant, his mother and his cousin brother stored in the laptop snatched by him from the plaintiff to any person, as also from using it in any manner whatsoever. A decree for recovery of Lenovo laptop of the plaintiff bearing model number SL4102842 A47 with additional 2 GB RAM and carry case S.No. LRTRVA4 or in the alternative for recovery of Rs.34,100/- is also passed in favour of the plaintiff and against the defendant. This part of the decree would however, be subject to payment of requisite Court Fees on the amount of Rs.34,100/-. A decree for damages amounting to Rs.10 lakh is also passed in favour of the plaintiff and against the defendant. The plaintiff will also be entitled to pendent lite and future damages @ 6% p.a. on the aforesaid amount of Rs.10 lakh, in addition to proportionate costs of the suit. Decree sheet be drawn accordingly.