Indexed As: Adobe Systems Inc. et al. v. Thompson. Federal Court Campbell, J. October 18, 2012.

Transcription

1 Adobe Systems Incorporated, Microsoft Corporation, and Rosetta Stone Ltd. (plaintiffs) v. Dale Thompson DBA Appletree Solutions (defendant) (T ; 2012 FC 1219) Indexed As: Adobe Systems Inc. et al. v. Thompson Federal Court Campbell, J. October 18, Summary: The plaintiffs claimed that the defendant infringed their copyright in a number of works through the unauthorized reproduction and sale of counterfeit copies of the plaintiffs' computer software products and the reproduction of cover art used on their software program packaging. The plaintiffs sought summary judgment. The Federal Court granted summary judgment and granted deterrent relief by way of an injunction, damages, interest and solicitor and client costs. Copyright - Topic 4583 Infringement of copyright - Remedies - Injunctive relief - [See Damage Awards - Topic 2423]. Copyright - Topic 4586 Infringement of copyright - Remedies - Damages - [See Damage Awards - Topic 2423]. Copyright - Topic 6010 Practice - General - Costs - [See Damage Awards - Topic 2423]. Damage Awards - Topic Exemplary or punitive damages - Copyright infringement - [See Damage Awards - Topic 2423]. Damage Awards - Topic 2423 Intellectual property - Copyright infringement - The defendant engaged in the

2 Interest - Topic 5008 Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Entitlement - [See Damage Awards - Topic 2423]. Interest - Topic 3501 Statutory interest - On judgments - General - [See Damage Awards - Topic 2423]. Practice - Topic Costs - Solicitor and client costs - Measure of - Lump sum - [See Damage Awards - Topic 2423]. Practice - Topic 7454 Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - [See Damage Awards - Topic 2423]. Practice - Topic Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Copyright actions - [See Damage Awards - Topic 2423]. Cases Noticed: Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 9]. Microsoft Corp. v. PC Village Co. et al. (2009), 345 F.T.R. 57; 2009 FC 401, refd to. [para. 10]. Louis Vuitton Malletier S.A. et al. v. Yang et al., [2007] F.T.R. Uned. 803; 62 C.P.R.(4th) 362; 2007 FC 1179, refd to. [para. 10]. Louis Vuitton Malletier S.A. et al. v B.C. et al., [2008] B.C.T.C. Uned. 454; 2008 BCSC 799, refd to. [para. 10]. Louis Vuitton Malletier S.A. et al. v. Singga Enterprises (Canada) Inc. et al. (2011), 392 F.T.R. 258; 2011 FC 776, refd to. [para. 10]. Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 14]. Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299, refd to. [para. 14]. Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick. Statutes Noticed: Copyright Act, R.S.C. 1985, c. C-42, sect. 38.1(5) [para. 7]. Counsel: Brian P. Isaac and Vik Tenekjian, for the plaintiffs; No Appearance, for the defendant. Solicitors of Record: Smart & Biggar, Toronto, Ontario, for the plaintiffs;

3 This case was heard in Toronto, Ontario, on October 11, 2012, before Campbell, J., of the Federal Court, who delivered the following decision on October 18, Editor: Elizabeth M.A. Turgeon Copyright - Topic 4583 Infringement of copyright - Remedies - Injunctive relief - The defendant engaged in the Copyright - Topic 4586 Infringement of copyright - Remedies - Damages - The defendant engaged in the Copyright - Topic 6010 Practice - General - Costs - The defendant engaged in the unauthorized reproduction and sale of counterfeit copies of the plaintiffs' (i.e., Microsoft's, Adobe's and Rosetta Stone's)

4 Damage Awards - Topic Exemplary or punitive damages - Copyright infringement - The defendant engaged in the Interest - Topic 5008 Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Entitlement - The defendant engaged in the unauthorized reproduction and sale of counterfeit copies of the plaintiffs' (i.e., Microsoft's, Adobe's and Rosetta Stone's) Interest - Topic 3501 Statutory interest - On judgments - General - The defendant engaged in the unauthorized reproduction and sale of counterfeit copies of the plaintiffs' (i.e., Microsoft's, Adobe's and Rosetta Stone's) software programs - The defendant sold the counterfeit copies on the internet and assisted purchasers of the pirated software by supplying detailed instructions and product activation keys - The plaintiffs sued, alleging copyright infringement - The Federal Court allowed the action - The court held that the defendant's conduct and bad faith was such that it warranted deterrent relief by way of declaration, injunction, the maximum statutory damages (i.e., $340,000, being $20,000 per work infringed for each of the three plaintiffs), punitive damages ($15,000 per plaintiff as requested by the plaintiffs), prejudgment and post-judgment interest, and solicitor and client costs ($60,000) - See Practice - Topic Costs - Solicitor and client costs - Measure of - Lump sum - The defendant engaged in the

5 Practice - Topic 7454 Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - The defendant engaged in the unauthorized reproduction and sale of counterfeit copies of the plaintiffs' (i.e., Microsoft's, Adobe's and Rosetta Stone's) Practice - Topic Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Copyright actions - The defendant engaged in the unauthorized reproduction and sale of counterfeit copies of the plaintiffs' (i.e., Microsoft's, Adobe's and Rosetta Stone's) software programs - The defendant sold the counterfeit copies on the internet and assisted purchasers of the pirated software by supplying detailed instructions and product activation keys - The plaintiffs sued, alleging copyright infringement - The Federal Court allowed the action - The court held that the defendant's conduct and bad faith was such that it warranted deterrent relief by way of declaration, injunction, the maximum statutory damages (i.e., $340,000, being $20,000 per work infringed for each of the three plaintiffs), punitive damages ($15,000 per plaintiff as requested by the plaintiffs), prejudgment and postjudgment interest, and