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Juraj Gyarfas ES L, s.
Tak v tomto rozhodnuti NS SR som sa asi trochu stratil. Paci sa mi uvaha o tom, co robit, aby nas Anglicania prestali povazovat za dedincanov. Uvidime o kolko storoci sa nam to podari: The Skype Group offers software which can be downloaded from the internet for free and allows users to communicate through free voice and video calls, by sending instant messages, SMS text messages or files, and by making or receiving low-cost calls to and from landline and mobile numbers.
Skype has proved very successful: It is domiciled in Luxembourg.
It is the owner of the copyright in certain software called the Global Index software. This software is fundamental to Skype’s business.
On 20 November Skype Technologies and Joltid entered into a written licence agreement. The License Agreement recorded the terms upon which Joltid would grant to Skype Technologies a world-wide licence to use a compiled object code form in essence, a form of software which is machine-readable rather than human-readable of the Global Index software. It is referred to in the License Agreement as the “Joltid Software”. The object code is to be distinguished from the source code which is a human-readable form of the software.
Under the License Agreement Joltid retained sole control over the source code. Any claim arising under or relating to this Agreement shall be governed by the internal substantive laws poriaok England and Wales and the parties submit to the exclusive jurisdiction of the English courts. Joltid claims that, in breach of the License Agreement, Skype Technologies had possessed, used, accessed, and modified the source code for the Global Index Software.
On 12 March it purported to terminate poriqdok License Agreement on that ground. On the same day Exekuucny Technologies began proceedings in this court claiming declarations that Joltid’s purported termination of the License Agreement was invalid and that pporiadok License Agreement continues in force.
Subject to one point, Skype Technologies accepts that it has used and accessed the source code. But it says that its use of the source code was not a breach of the License Agreement. Joltid thus intended Exwkucny Technologies to use the source code as if it were the object code. As a result, it puts its case in a number of ways. It says that the conduct of the parties amounted to a variation of the License Agreement.
Alternatively it says that Joltid is estopped from alleging a breach of the License Agreement. Alternatively it says that Joltid has waived compliance with the strict terms of the License Agreement.
All these allegations, except possibly the defence based on waiver, rely on the continued effect of the License Agreement.
Exekučný poriadok in English with contextual examples
Because Skype Technologies alleges that the License Agreement has not been validly terminated, the Skype Group continues to use the software. On 12 MayJoltid served its Defence and Counterclaim. Joltid seeks declarations to the effect that the License Agreement was validly terminated on 12 Marchas well as injunctions and financial remedies. Paragraph 2 b of the prayer for relief claims an injunction restraining Skype Technologies from misusing Joltid’s confidential information; and paragraph 2 d claims an injunction restraining Skype Technologies from making any further use of the Joltid Software, the GI Source Code or any versions or modifications of them that Skype may have developed.
If granted, these injunctions would have world-wide effect. The trial of the action has been listed to begin on 8 June In particular, eBay Inc and Skype Inc a wholly owned subsidiary of Skype Technologies entered into a purchase agreement with a number of investors: Joltid says that the terms of the purchase agreement made it clear that the new owners were required to continue operating Skype in the normal course of business, consistent with Skype Technologies’ past practice, including reproducing the GI Source Code.
Joltid says that it follows that the terms of the purchase agreement contractually required Skype Technologies to continue to infringe and indeed expand the infringement of Joltid’s copyright throughout the world. On the same day Joltid registered its copyright in the source code with the US Copyright Office, and a fortnight later, on 15 September, registered its copyright in a modified version of that source code. It goes on to allege that despite that termination Skype continues to promote the downloading of Joltid’s software.
It then alleges that Joltid is bringing the action for copyright infringement against Skype, eBay and the Investors. Paragraphs 35 to 38 of the Complaint amplify the facts alleged surrounding the making of the License Agreement, the breaches of the agreement and its termination. Paragraph 39 refers to the proceedings in this court. Paragraphs 53 to 62 deal with the sale of part of eBay’s shareholding in Skype to the Investors.
The first head of relief is a claim for copyright infringement as a result of the Skype Group copying the software. The second is a claim that the Skype Group has infringed copyright by modifying the software. The third is a claim that the Skype Group has infringed copyright by distributing the software and derivative works based on the software.
The fourth is based on an allegation that end users are also infringing copyright and that all the Defendants are liable for inducing that infringement. The fifth is an allegation that all Defendants are liable for materially assisting and facilitating direct infringement by end users. The sixth is a claim that all Defendants are vicariously liable for direct infringement by end users.
In all cases Joltid claims damages and an injunction to restrain further infringement. In addition Joltid also claims statutory damages under US Federal copyright legislation; and in the alternative actual damage plus an account of profit. Joltid has also made a demand for jury trial, as it is entitled to do under Californian proiadok.
The essence of a claim of copyright infringement under US law, as Professor Menell explains, is an unauthorised reproduction or infringement of one or other of the exclusive rights granted to a copyright owner under US law. The consent of the copyright owner such as through a licence may be raised as an affirmative defence that must be proved by the defendant.
Skype Technologies poriavok that in so far as the US proceedings make claims against it, the claim is a breach of clause If the parties, one or more of exekucn is domiciled in a Member State, have agreed that a court or the courts of a member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall poriadko jurisdiction.
Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Since Skype Technologies is domiciled in Luxembourg, there is no doubt that this article applies. That gives rise to two questions: In so ppriadok as the US proceedings concern Skype Technologies, do they fall within the scope of the exclusive jurisdiction agreement; 2.
If they do, how does that affect the court’s willingness to grant an anti-suit injunction? Whether poriaxok claim falls within an agreed jurisdiction clause is a question of interpretation of the clause in question. That question is to be decided according to national law, even in the context of the Judgments Regulation see Benincasa v.
Dentalkit Srl  E. In my judgment there is no distinction to be drawn between the approach to the interpretation of a clause in an agreement which confers jurisdiction on the courts of a particular territory and a clause in an agreement which confers jurisdiction on a particular tribunal, such as an arbitrator.
Both types of clause represent the parties’ agreement about how disputes are to be resolved. Both should be interpreted in accordance with the same principles. The correct approach to the interpretation of arbitration agreements has been considered recently by both the Court of Appeal and the House of Lords.
If businessmen go to the trouble of agreeing that their disputes be heard in the courts of a particular country or by a tribunal of their choice they do not expect at any rate when they are making the contract in the first place that time and expense will be taken in lengthy argument about the nature of particular causes of action and whether any particular cause of action comes within the meaning of the particular phrase they have chosen in their arbitration clause.
The words “arising out of” should cover “every dispute except a dispute as to whether there was ever a contract at all”? It will be noticed that Longmore LJ approached both jurisdiction clauses and arbitration clauses in the same way. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction.
Although Lord Hoffmann’s discussion of arbitration clauses did not expressly include jurisdiction clauses, he applauded Longmore LJ’s judgment; and Lord Hope clearly regarded jurisdiction clauses and arbitration clauses as serving similar purposes with the result that their interpretation should be approached in the same way.
On the contrary it is predicated on the assumption that the License Agreement has been terminated. Mr Calver says that his proposition can be tested in the following way: The answer must be: But the heart of the current dispute between the parties is whether the License Agreement has or has not been validly terminated.
That issue has not been determined, and it is the issue which this court will decide. The fact is that if Skype Technologies is right in saying that the License Agreement remains in force and that it has the effect that it says it has, then Joltid’s claims against Skype Technologies in the US proceedings will fail. It is only if Joltid succeeds in this court that the claims made in the US proceedings get off the ground against Skype Technologies. But this was both hypothetical and obiter, and none of the other Law Lords associated themselves with it.
Mr Calver’s argument is, in my judgment, based on an unduly narrow reading of the clause. Whether the contention that the License Agreement is still in force is pleaded by way of Complaint or by way of defence is, in my judgment, irrelevant. Rational businessmen would not envisage that their choice of jurisdiction would depend on who issued proceedings first, or whether an ingenious pleader could frame a cause of action without actually mentioning the License Agreement.
Accordingly, in my judgment the claims against Skype Technologies made in the US proceedings fall within the scope of clause Mr Hollander says that that is the end of the matter. This court has exclusive jurisdiction under article 23 of the Judgments Regulation; 2. The ECJ has said that where a court has exclusive jurisdiction under the Regulation it must not decline to exercise it, and accordingly there is no question of Skype Technologies’ proceedings in this court being stayed in favour of the US proceedings; 3.
The test for staying domestic proceedings and granting an anti-suit injunction are the same: It follows therefore that if the court cannot stay its own proceedings, it must grant an anti-suit injunction. The first step in this argument is established by article 23 itself; and I agree with it. In that case the parties both of whom were domiciled in England entered into an agreement about the hire of a holiday villa in Jamaica.
While on holiday the claimant was seriously injured; and he brought an action in England for damages. In addition to the English domiciliary, there were a number of Jamaican defendants to the claim.
The defendants invited the court to decline jurisdiction on the ground of forum non conveniens, saying that Jamaica was the right place to try the claim. The ECJ ruled that a court which had jurisdiction under article 2 of the Brussels Convention which corresponds to the Judgments Regulation could not decline to exercise that jurisdiction by the application of the discretionary doctrine of forum non conveniens.
The principal justification exemucny the decision was that it promoted legal certainty, and that legal certainty would be undermined if discretionary doctrines could defeat the allocation of jurisdiction under the Convention. I am inclined to agree with Mr Hollander that the decision of the ECJ in Owusu has now removed discretionary considerations such as those relating to forum non conveniens from playing any part in the decision of a court in a Member State from staying pooriadok own proceedings.
I am also inclined to agree that the court should not, under the guise of case management, achieve by the back door a result against which the ECJ has locked the front door cf. However, in Owusu the ECJ did not rule on the question whether a court having jurisdiction under the Convention could or should grant an injunction preventing the taking of proceedings in another jurisdiction.