Automated Summary
Key Facts
Microsoft Corporation applied for Norwich Pharmacal relief against Oxide Group Limited to obtain disclosure of information and documents that could identify operators of RedVDS.com, a website that has been cloning unlicensed evaluation copies of Microsoft's Windows Server 22 and making them available to users conducting cybercrime. The RedVDS operators have made approximately 6,000 unauthorized copies of Windows Server 22 available monthly at substantial profit. Oxide Group leased the server through which these illicit operations are conducted, and Microsoft seeks to identify the wrongdoers to protect its copyright and trademark rights. The hearing was conducted without notice and in private due to urgency concerns and parallel proceedings in New York that would become public.
Issues
- Microsoft sought an order against Oxide relating to preservation of evidence. The court considered whether such an order could be made against a third party even though Oxide itself was not the target of the proposed proceedings. The court determined that it was appropriate to order preservation given the lingering concern that Oxide might take steps to remove or destroy evidence, and that there would be no prejudice to Oxide since the information was to be provided in any event.
- This case concerns an application for Norwich Pharmacal relief by Microsoft Corporation against Oxide Group Limited. Microsoft seeks disclosure of information and documents to identify operators of RedVDS.com who are allegedly conducting industrial-scale infringement of Microsoft's copyright and trademark rights. The court examined whether Microsoft demonstrated a good arguable case that it has been the victim of a legally recognised wrong, whether Oxide was mixed up in the commission of the wrongdoing, whether Oxide can provide information to identify wrongdoers, and whether the order is appropriate and proportionate.
- Microsoft's application was made as a matter of urgency and without notice. The court considered whether proceeding without notice was appropriate given that publicity could defeat the object of the hearing and that law enforcement agencies were already investigating the operators. The court was satisfied that prior notice would likely alert the operators and users to the fact that Microsoft was conducting investigations into them, which would allow them to take evasive action by destroying or removing evidence. The court also noted that proceedings in New York would become public through Splash notices, which would further alert the operators.
- Microsoft sought an order sealing the court file and providing that the application not be disclosed until after the posting of Splash notices in the United States. The court was satisfied that this was an appropriate order to make for much the same reasons that it was appropriate to proceed without notice. The court noted that if the existence of this order were made public before the Splash notices, it would risk defeating the purpose of the exercise, as the RedVDS operators and users would be alerted to the fact that they are being investigated and may take evasive action.
Holdings
The court granted Microsoft Corporation's application for Norwich Pharmacal relief against Oxide Group Limited, ordering Oxide to disclose information and documents necessary to identify operators of RedVDS.com who are infringing Microsoft's copyright and trademark. The court also made an order for preservation of evidence against Oxide and ordered that the court file be sealed with non-disclosure until after the posting of Splash notices in the United States.
Remedies
- The court made an order against Oxide relating to the preservation of evidence, ensuring that any information provided would not be destroyed, which could undermine the investigation into the RedVDS operators and users.
- The court granted Norwich Pharmacal relief, ordering Oxide Group Limited to provide disclosure of information and documents needed to identify operators and users of RedVDS.com who were infringing Microsoft's copyright and trademark through unlicensed Windows Server 22 copies.
- The court ordered the court file to be sealed and the application not disclosed until after 1 pm the next day, following the posting of Splash notices in the United States, to prevent alerting RedVDS operators to the investigation.
Legal Principles
Norwich Pharmacal relief requires: (1) claimant demonstrates a good arguable case of being a victim of a legally recognised wrong; (2) respondent has been mixed up in commission of that wrong and facilitated it; (3) respondent is able or likely to provide information/documents necessary to identify ultimate wrongdoers; (4) order is appropriate and proportionate. Court may also grant preservation of evidence orders against third parties and non-disclosure orders to protect the purpose of the application.
Cited Statute
- CPR Part 31.17 outlining Norwich Pharmacal relief requirements
- CPR Part 39.2(3) governing private hearings
Judge Name
Mrs Justice Dias
Passage Text
- This is an application for Norwich Pharmacal relief by Microsoft Corporation against an English company, Oxide Group Limited, to obtain disclosure of information and documents. This information and these documents are said to be needed so that Microsoft can be put in a position to take steps to protect its rights arising out of what is said to be industrial scale infringement of its copyright and trademark by operators of a website going by the name of RedVDS.com, which operates on a server leased from Oxide.
- In my judgment, there is an overwhelming case here that all four requirements are satisfied. It is clear from the evidence before the court that the RedVDS operators and users are infringing Microsoft's copyright and trademark on an extensive scale. There is also evidence that at least some of the users are committing cybercrimes which are obviously illegal and need at the very least to be reported to the relevant authorities and investigated.
- For all these reasons, I am satisfied that it is appropriate in principle to grant the order.