1. The Bang: Search
Warrants
Let them in. The criminal law confers upon police
officers, armed with a search warrant, powers of search and seizure,
upon the subject of the warrant. These are Court Orders, and therefore
must be complied with. In order to be subject to the warrant, reasonable
grounds must exist that a search of your premises will uncover pirated
software, utilities or applications which have been copied or shared
in breach of any copyright or licence agreements with the software
company.
The powers of the search warrant also cover search and seizure,
- of any evidence of a commission of an offence; or ,
- of anything on the premises which has been used, or are to be
used, with respect to the commission of an offence.
The powers of a warrant do not end there. The police officers,
under the criminal law, are also given authority to,
- remove equipment for examination;
- search electronic equipment and computers;
- take photographs; and,
- obtain copies of the seized property.
You can also expect to be served with an occupier's notice and
an announcement explaining the effect of the warrant prior to entry.
You also have the right to be shown the warrant if you so request.
Any property seized from you must remain in the possession of the
police until the determination of any charge in relation to the
property.
A final word of warning, do not deny access to a police officer
in possession of a search warrant. The officers may use reasonable
force, if required, in the execution of the search warrant. Further,
non-compliance with the terms specified under the search warrant,
can result in an offence for contempt of court, under which the
police then have powers of arrest.
2. Knock-knock: Anton Piller Orders
Alternatively, you may be confronted by another form of Court Order,
known in legal circles as an Anton Piller Order. This Order compels
you to allow the Applicant for the Order, such as the BSAA and their
solicitor, or some other officer of the Court, to enter your premises
and to remove, or make copies of specific property.
There are a few things to keep in mind if you are faced with the
enforcement of an Anton Piller Order:
- Expect to be caught by surprise. These orders are made 'exparte'
(ie without notice to you), to avoid any possible situations where
you may be tempted to conceal or remove the property.
- The process is open to abuse. So be aware of your rights and
get some quick legal advice. The main rights you should be aware
of are:
- In general, orders should be executed during business hours
only.
- It is desirable that the execution of the order be supervised
by an independent solicitor, other than the solicitor acting
for the applicant. If this is not the case, the applicant
may be required to give an undertaking that independent legal
advice will be made available to you, before the order is
executed.
- You are entitled to be served with a copy of the report
prepared by the supervising solicitor. This report will include
an inventory of items removed and you should be given the
opportunity to check the inventory and be given a signed copy
of the inventory before the items are removed.
- In any event, you should receive notice at the time you
are served with the order of your right to obtain legal advice
including your right to phone your lawyer, before having to
allow entry to your premises.
And if you refuse entry to the premises? Unlike, a search warrant,
forced entry cannot be taken. However, your refusal will be brought
to the Court's attention and you could face a charge for contempt
of court. You may make an urgent application to the court to have
the order set aside, but if the application fails, you may face
the possibility of liability for contempt.
3. Tap-tap: Letter of Demand
This is one of the more common and perhaps least threatening forms
of notice you may receive. But, this does not mean that a letter
of demand should be ignored.
In most cases the copyright owner will not be writing the letter
of demand unless he already has some evidence of your breach. So
it would be unwise to touch or destroy your software. This would
only serve to provide even further incriminating evidence.
Some of the types of demands that you could expect in a letter
of demand will include to provide information regarding the number
of copies of certain types of software in the organisation; numbers
of licences held, and the date of their acquisition; and any evidence
of licenses, such as copies of invoices relating to the purchases
of licences.
Non-compliance with the demand can lead to legal proceedings and
therefore you should seek legal advice as soon as possible.
No matter how the knock comes, unless you are in possession of
pirated software, what the software owner ultimately wants is for
you to get your software licensed, and with the assistance of your
lawyer you should be able to do a deal and avoid protracted legal
proceedings.
Martin O'Connor is a partner in the Sydney Office of Coudert
Brothers, Solicitors & International Attorneys.
Martin O'Connor and Jamie
Nettleton of Coudert Brothers Sydney Office, both specialise in
intellectual property law and have been involved in defending claims
by software owners such as the BSAA. For further information, contact
Martin O'Connor on (02) 9930 7547 e-mail martin.oconnor@sydney.coudert.com
or Jamie Nettleton on (02) 9930 7569 e-mail jamie.nettleton@sydney.coudert.com
or visit Coudert Brothers' website at www.coudert.com.