Judgment of the Central Intellectual Property
and International Trade Court

Penal Code, Section 91

Civil Procedure Code, Section 47.

Copyright Act B.E.2537 Sections 31 91), 31 (3), 69, paragraph 2, 71, paragraph 2.

The plaintiff's power of attorney appointing the attorney-in-fact to file this complaint was issued in the United States of America. This power of attorney had been notarized and certified by the Ministry of Foreign Affairs of the United States of America which confirmed the act of the person who acted as the notary public which was deemed to be the legal and valid power of attorney in compliance with Section 47, paragraph 3 of the Civil Procedure Code. The first and second defendants did not have evidence to prove otherwise than denying the validity of the power of attorney because there was no Company’s Seal of the plaintiff affixed thereon. The court found that the power of attorney issued by the plaintiff without affixing the Company's Seal of the plaintiff in support of the signature of "Mr.B", the assistant secretary who was authorized to act on behalf of the plaintiff did not invalidate the authority granted by the plaintiff. This was because "Mr.M", the notary public, certified that " Mr.B" had the authority to act on behalf of the plaintiff without specifying that the Company's Seal of the plaintiff was also required. In addition, the affidavit of "Mr.J", another notary public of the Washington State confirmed that the power of attorney was issued in compliance with the law and that "Mr.B" had the authority to act on behalf of the plaintiff because such authority had been entrusted in compliance with the resolution of the board of directors of the company and that there was no requirement for the plaintiff’s seal to be affixed thereon in order to be valid and enforceable. The court found that the authority granted by the plaintiff to proceed with the case on its behalf was valid. The plaintiff was therefore entitled to file this complaint.

From the inspection of the computer bought by Mr.S. from the defendant, it was found that the plaintiff’s computer programs as complained in the lawsuit have been installed. Apart from this, the hard disk of the machine has been formatted prior to the creation of the subdirectories of the plaintiff’s computer programs. This is technically impossible since the formatting will delete all the saved data files. It is thus concluded that all the plaintiff’s computer programs being installed in the said computer’s hard disk have been copied or made copies from the computer programs installed in the hard disk of other computer. Moreover, from the inspection of the serial number of the plaintiff’s computer programs installed in the machine, it was found that the said serial number was that of the serial number already destroyed, not the serial number prescribed by the plaintiff for use with the plaintiff’s computer programs. The inspection of the property of the Microsoft Windows 95 Thai Edition program found the serial number 26895-OEM-0004854-88605 which has been altered since the letters “OEM” would be the code for the newly installed Microsoft Windows 95 Thai Edition. However, from the inspection of the file structure, it was found that there were also the Microsoft DOS and Microsoft Window 3.11 programs being also installed in the machine. It implied that the Microsoft Windows 95 Thai Edition as installed in this machine has been upgraded from the said Microsoft DOS and Microsoft Windows 3.11 programs, not the newly installed programs in accordance with the shown serial number. Therefore, such serial number has been altered to make it looked like the newly installed programs. For the serial number of the Microsoft Office programs, the serial number – 1111111 – was found among other numbers. This serial number was the number newly established by the alteration of the correct number of the original programs. In the said group of numbers, the plaintiff used the technique of specifying the number such that its combination must be evenly divided by seven. Therefore, when the number has been altered, seven “1” digits have been used in order to simplify the matter. The information so obtained has shown that the plaintiff’s computer programs have been copied by altering the serial number. Moreover, there were no certificate of authenticity, the end user license agreement for Microsoft software, product registration certificate, user’s manual, CD-ROM or diskettes recording the computer programs to support the defendant argument. It was thus evident that all the computer programs in the machine were the programs made by infringing the plaintiff’s copyrights. The facts are concluded that the third defendant has sold the first defendant’s computer having the plaintiff’s programs installed in the machine without authorization being an infringement of the plaintiff’s copyrights.

The computer hardwares sold by the third defendant were manufactured by the first defendant. The third defendant sold the computer hardwares in his capacity as an employee of the first defendant. The income derived from such sale belonged to the first defendant. The sale of the computer hardwares per Exhibit 6 took place in the sale office of the first defendant. The computer hardwares were test run in the sale office. Other than the third defendant who was the sales man, a technician of the first defendant also participated in the test run of the computer program which infringed the copyright of the plaintiff. The test run was carried out openly in the showroom and in the discussion during the sale of the computer hardwares between the third defendant and "Mr.S", the third defendant stated by implication that the first defendant could provide pirated computer program which infringed the plaintiff's copyright. All of these facts showed that the sale of computer hardware which had the computer program which infringed the plaintiff's copyright installed therein was not committed only by the third defendant. In particular, the computer hardwares manufactured by the first defendant at the factory would be delivered to the sale office directly. Sale of computer hardwares was the objective of the first defendant's business. This was for the benefit of the first defendant. There was no evidence to show that the third defendant received any special benefit from the sale of the computer hardware which must install infringed computer program. In addition, the copyright of subdirectories prior to the formatting implied that the hard disk of other computer has been identically copied to the computer in this case in the manner called “track by track”. It is necessary for the said manner of copyright to use the instruments and equipment, not the copying from CD-ROM or diskettes being easier to do and may be unknown to other person. As a result, if the first defendant's employees or relevant persons were not involved, no such copying of the plaintiff's computer program could be made by the third defendant. Such computer hardware having been manufactured at the factory would be delivered directly to the sale office of the first defendant. The act of copying the plaintiff's computer program must have been done at any time during which the computer hardwares were within the first defendant's responsibility. Therefore, it is believable that the first defendant's employees and related persons, in particular, those who are the management level had knowledge and were involved in the act of the third defendant.

In view that the third defendant being the representative of the juristic entity of the first defendant, other employees of the first defendant and persons involved in the management and operation of the first defendant had shown their intention to do things within the authority in their capacity involved in the above-mentioned operation, i.e., sale of computer hardware which was within the ordinary course of business of the first defendant and if the customers wanted computer program, the first defendant would also supply the same whether or not such computer program was a licensed one which such operation was within the objective of the juristic entity for the purpose of selling computer hardware and was the activity for the purpose of business for the benefit of the first defendant. If such activity was in violation of the law, the first defendant in his capacity as a juristic entity must be criminally liable. With regard to the second defendant in his capacity as the managing director of the first defendant must prove that the act of the first defendant which was the juristic entity was committed without his knowledge or consent within the meaning of Section 74 of the Copyright Act of 1994. In this particular case, the second defendant, the managing director of the first defendant, in his position must be deemed to have the responsibility to oversee all business activities of the first defendant. The second defendant's denial that he had no knowledge of the infringing act in this case because the general manager supervised the business operation in each office was not acceptable. In particular, the offense in this particular case was committed in the test room of the office at Phyathai Plaza Building which was not far from the second defendant's office. The second defendant also argued that there had been the announcement of the policy prohibiting employees from selling pirated computer program. If that allegation by the second defendant was seriously introduced, the third defendant would not have committed such an offense openly in the office which was close to the office of the executive. Besides, when the second defendant became aware of the offense committed by the third defendant, no action whatsoever was taken to enforce the policy in accordance with the notice which would show the sincerity in carrying out the policy to prohibit employees from selling pirated computer program. The second defendant's denial was not acceptable.

The act committed by the first defendant and the second defendant was an offense of copying the plaintiff's computer program for the purpose of trade within the meaning of Section 31 (1) of the Copyright Act of 1994 and distribution of pirated computer program which was in violation of the plaintiff's copyright within the meaning of Section 31 (3) of the Copyright Act of 1994. The question arises that how many counts of offense should be imposed on the defendant. The fact was established that the third defendant being the salesman who offered to sell the plaintiff's computer program in the manner which caused damage to the plaintiff and not the buyer who indicated its intention to acquire the pirated computer program from the beginning and the copying of the plaintiff's computer program had occurred in another place and did not occur immediately at the time of the sale. The sale of the pirated computer program was made on a later date after the appointment for receiving the computer hardware. Under the circumstance, although the first defendant and the second defendant had only one aim to distribute the computer program which violated the plaintiff's copyright, the first and the second defendant would be deemed to have intended to act separately. When these offenses (Section 31(1) and Section 31(3)) are defferent, the defendants were therefore considered to be punished as committing separate counts of offense.