Allegations can’t serve as an evidence of copyright infringement

Microsoft Company is very famous and its products are widespread around the world, including Russia. The most popular program Windows has been installed in different versions on many millions of devices, and the fact is that not all copies of this program are duly licenced. In other words this program is installed and used on devices (who knows how many of them?) without any licence payment to Microsoft.

Company works hard in order to at least reduce the scale of piracy or unlicensed use of its products. One of a company’s efforts was attempt to check computers in order to discover whether user installed pirated software. As Izvestia has reported, Microsoft attempted to do it through bailiff service in Russia, but Russian courts disappointed company. Microsoft wanted to check companies where the quantity of employees does not match to quantity of software acquired by the company in question. But the courts decided that absence of legal software dies not prove that illegal software is used.

In 2016 Microsoft filed to Russian court several motions to “secure property interests”. Company asked the court to order Russian bailiff services to inspect computers of Russian companies where, as Microsoft believes, counterfeit software has been used. Microsoft did not have direct proofs confirming illegal use of its software, but intended to receive them in the course of inspection. Microsoft believes that without “preliminary securing of evidence” it is impossible to proof that company in question uses illegal software – company can destroy these evidences.

The logic is simple. Microsoft counts employees of certain company. Data necessary to do it is taken from open sources (whether these sources are verified is not clear and it also is not clear how to define whether certain open source is reliable for such purposes). With quantity of employees Microsoft computes the company’s needs in software and then compares its results – the quantity of employees, counted by Microsoft, and the company’s needs in software, computed by Microsoft. And if results don’t match Microsoft makes a conclusion – it means the company uses pirated software.

One court in Kemerovo decided that Microsoft research and conclusions have of “hypothetical nature and can’t serve as an evidence of the use of illegal software”. If there is no evidence confirming illegal use of Microsoft’s software, it means there is no claimant and therefore there is no case. As one lawyer has said the claimant asked the court to collect evidence for him in order to make a case. The court consider evidence, it is not a lawyer of employee of claimant.

One company told to Izvestia that it has received requirement from Microsoft to disclose information about working stations and software, exploited by the company. The company was ready to provide necessary information under condition of NDA (non-disclosure agreement), but Microsoft refused to sign it.