The High Court has continued an order restraining a Dublin-based company, Brightpoint Ireland Limited, from making use of unlicensed software in its business. The interlocutory order was sought on behalf of the Business Software Association (a trade association of some of the largest software publishers and distributors in the world), by Mr James Connolly SC, for Microsoft Corporation and another US-based computer company, Symantec Limited. It applies pending the determination of legal proceedings taken against Brightpoint by the computer giants.
An interim order restraining Brightpoint from using unlicensed software was granted by the High Court earlier this month. In proceedings heard by Mr Justice Smyth last week, the plaintiffs sought continuation of that order pending the outcome of the full action, while Brightpoint applied to discharge the order and also sought other orders, including attachment and committal of the chairman of BSA Ireland, Mr Conor Molloy, and also of a solicitor acting for the plaintiffs. Brightpoint, which denies involvement in any software piracy and claimed that any inability to produce licences was because these were misplaced and not because there were no licences, had claimed a search of its premises carried out on foot of a court order was effected aggressively.
It also complained that the plaintiffs had widely publicised the making of the order against it. The company had claimed its business was gravely and irreparably damaged because of the raid and the publicity associated with it.
Delivering his reserved judgment yesterday, Mr Justice Smyth granted Microsoft's application and refused the orders sought by Brightpoint. He was satisfied, on the basis of the evidence and information put before him, that the interim order against Brightpoint was justified in its making and he was also satisfied the conduct of the plaintiffs afterwards was not contemptuous.
He rejected the Dublin company's claim that an application for the kind of search order sought by the plaintiffs should be heard in camera. However, while stating the media could publish his judgment in the normal way without restriction, he ordered that neither of the parties should, either directly or indirectly, make any comment in the media or on their websites of the action until it was determined and should also, by July 12th, erase any references to the matter on their websites. He said both sides would be better served by either resolving their differences or moving the legal process forward.
The judge remarked that the decision by both sides to engage public relations consultants had exacerbated the differences between them. That was unfortunate, he said.
In his decision, the judge noted the claim by the plaintiffs that the defendant operated without appropriate licences for a range of software, including Microsoft Office and other programmes, was denied "with some qualifications".
He noted the claims of operating without license were made in an affidavit of a former Brightpoint employee. That employee had claimed he resigned over the use of non-licensed software by Brightpoint while the latter claimed the employee was asked to resign because he was allegedly incompetent and unreliable.
The judge said there was much controversy about what had happened on June 2nd last when the plaintiffs, acting on foot of a court order, entered Brightpoint's premises and took away documents and other material. That controversy could only be resolved at an oral hearing, he said.
He rejected Brightpoint's claims that there had been nondisclosure of important material by the plaintiffs when seeking the search order and found there was sufficient and proper disclosure as was warranted to get such an order.
The judge said he did not accept the securing of the order was irregular and he would not set it However, he found it would have been better if there had been a detailed and agreed list of material taken from the Brightpoint premises.
