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1. This matter comes before the Court by way of Notice of Motion for an Interlocutory Injunction restraining the Defendants and each of them, by themselves their servants or agents or otherwise howsoever from doing the following acts or any of them, namely:-

(a) Infringing the Plaintiffs' copyright in its software used in VideoCrypt decoders or Smart Cards ("the Software")

(b) Reproducing or making an adaptation of the Software or any substantial part thereof in any material form and in particular by means of decoding cards for the reception of the satellite television channels transmitted by the second and third named Plaintiffs in particular Sky Sports, The Movie Channel, Sky Movies Plus, Sky One, Sky News and Sky Movies Gold.

In addition to the foregoing the Plaintiffs' claim, by way of Injunction, further ancillary relief.

The first named Plaintiffs claim to be the owner of the copyright in the software.

In brief the facts and circumstances which underlie this application are these. British Sky Broadcasting Limited and Sky Television, transmit their television signal in a "scrambled form", so that it cannot be received on a standard television set, but only on a set which has been adapted by being fitted with a decoder which is activated by a "Smart Card". They provide a "Smart Card" to persons who pay an appropriate subscription to them, and who are thus enabled to unscramble the said television signal and to see and hear it.

The Smart Card is in fact a computer programme comprising (inter alia) an algorithm, a source code, and an object code. It acts, when placed in the decoder, as a command vehicle, which authorises and activates the decoder to unscramble the encoded television signal which has been transmitted to a satellite, and reflected back by the satellite to the subscriber's television dish. The decoder is a piece of "computer hardware".

The Plaintiffs have a facility for altering the computer programme, in particular the algorithm contained in the Smart Card, and do so from time to time. When they do so they have to provide each subscriber with a new and altered Smart Card. The algorithm in such circumstances is totally new.

In the Autumn of 1993 the first named Defendant began to market and sell in the Republic a "Smart Card" which was neither produced by, nor, authorised by the Plaintiffs or any of them. It is likewise common case that the Defendants' "Smart Card" when used in a decoder, will unscramble the Plaintiffs' said scrambled television signal and permit the user to see and listen to it.

In essence, the Plaintiffs' claim is that the Defendants' Smart Card must contain a copy or at least a part copy of the algorithm and other components of the Plaintiffs' Smart Card. They base this claim on the premises, that the algorithm used is so complex, that it is not within the bounds of probability, that the Defendants' Smart Card could have been produced from any other source, other than direct access to and copying of the Plaintiffs' algorithm and or other elements of the computer programme contained in the Plaintiffs' software.

The Plaintiffs' said claim to the complexity of the algorithm giving rise to the said improbability is vehemently, and, unequivocally contested by the Defendants. The statutory basis for the Plaintiffs' claim is to be found in the extension of the Copyright Acts 1963 and 1987 arising from the European Communities (Legal Protection of Computer Programmes) Regulations 1993 SI No 26 1993 and in particular the provisions of Clauses 2, 3 and 5 thereof. Clause 3(1) of the said Regulations provides,

"Subject to paragraph 2 of this Regulation, copyright shall subsist in a computer programme and the Copyrights Act 1963 and 1987, shall apply to every original computer programme as if it were a literary work and the legal protection so afforded shall apply to the expression in any form of a computer programme".

It is fundamental to any claim based upon the foregoing that the Plaintiffs must establish that the infringement complained of involves a substantive degree of copying. Clearly, to succeed in the action the Plaintiff must establish as a matter of probability that the "pirate work" contains a substantive degree of copying of the original.

In this instance we are dealing with an Interlocutory application and the principles endorsed by the Supreme Court in Campus Oil Limited v Minister for Industry and Energy and Others (No 2) [1993] IR at 88 must be applied. The then Chief Justice Mr Justice O'Higgins said at page 107:-

"In my view, the test to be applied is whether a fair bona fides question has been raised by the persons seeking the relief".

He goes on to cite with approval the passage from the judgment of Lord Diplock in American Cynamid v Ethicon Limited [1975] AC 396 at 407. That passage is cited in detail in the judgment of Mr Justice Griffin at page 110. The material part of the passage is:-

"The Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the Court's function at this stage of litigation to try to resolve the conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions or law which call for detailed argument and mature considerations".

Nonetheless to raise a fair question to be tried there must be some positive evidence tendered by the Plaintiff, which at minimum gives rise to an implication that copying has taken place and which rescues the Court from the doldrums of unadulterated speculation though falling far short of an establish probability.

A not dissimilar problem confronted the Vice Chancellor Sir Robert Megarry in Thrust Code Limited and Another v WW Computing Limited (an application for an Interlocutory Order) [1983] FSR 502.

In that case the Plaintiff sought to enjoin the Defendants from reproducing, publishing, selling any of the Defendants' "W squared" computer programmes or any other computer programmes which reproduced the Plaintiffs' "EBS 11 or Aonega" computer programmes. The function of the programmes in question was to control manufacturing processes in large factories.

At page 505 of his judgment, having concluded that copyright was capable of subsisting in a computer programme, he says:-

"With that I turn to what I have found a central difficulty. In the normal case in which an infringement of literary copyright is alleged, it is possible to put side by side the written, typed or printed words in which the Plaintiff claims copyright and the corresponding words which are said to infringe the copyright. The words can be seen and compared and discussed. In the case of computer programmes the software appears to consist of articles which by magnetic or electrical means will make the hardware do certain things together with what is recorded on various tapes and discs. By this means, letters, signs and numbers of the programme may be made to appear on a screen or on a printout and if this is done then the familiar process of comparison is made possible. Yet where, as here the claim is copyright in the programme itself the results produced by operating the programme must not be confused with the programme in which the copyright is claimed." (emphasis mine) "If I may take an absurdly simple example two and two make four. But so does two times two or six minus two or two per cent of two hundred or six squared divided by nine or many other things. Many different processes may produce the same answer and yet remain different processes that have not been copied one from another. For computers as for other things what must be compared are the things said to have been copied and the things said to be infringing the copy. If these two are invisible, then normally they must be reproduced in visible form or in a form that in some way is perceptible, before it can be determined whether one infringes the other.

In some cases no doubt it may be possible in some other way to demonstrate that one is a copy of the other, as where there is some evidence or some admission that when one computer was being programmed someone was watching and was programming a rival computer in the same or a similar way. Normally however, what will be needed is a printout or other documentary evidence of the programme alleged to have been copied, and of the alleged infringing programme, all sufficient parts of each. You must look at what the programmes are and not at merely what they do or can do . . ."

Later in his judgment on page 506 he says:-

"Difficult questions may arise as to the powers of the Court to compel the production of computer programmes for inspection at the interlocutory stage . . . Apart from that no doubt there may be other evidence of copying direct or inferential which will suffice at an interlocutory stage. The question is whether there is enough evidence in the particular case."

Dealing with the Defendants' submission he said:-

"Their contention was the assertion that the Plaintiffs had produced no evidence which showed the copyright work on which they relied. The claim was for copyright in the Plaintiffs' computer programmes and yet these programmes had not been put in evidence. There was not even samples to show the nature of the subject matter of what had been copied. The Plaintiffs accordingly had laid no foundation for their claim."

Returning to the Plaintiffs' reply he noted:-

"The evidence of infringement . . . was inferential and . . . that the examples of display that were in evidence merely show the fruits of the programme and were not direct evidence of any similarities in the programmes themselves."

He concluded in the circumstances that as the evidence stood he could not say the Plaintiffs

"had demonstrated that they have any real prospect of succeeding in the trial of their claim for breach of copyright"

and accordingly he dismissed the Motion for an Interlocutory Injunction.

Returning to the present application it is common case that the Defendants' Smart Card will do exactly what the Plaintiffs' Smart Card does namely decode the Plaintiffs' scrambled signal. The Plaintiffs seek to draw the inference from this fact that the two cards must be the same in function, that is, implement the same algorithm. They seek to justify this conclusion simply upon the opinion of a partisan expert that by virtue of the complicated nature of the algorithm involved nothing short of copying could give rise to this result. They do not offer any scientific basis for this claim. The Plaintiffs' claim in Thrust Code Limited v WW Computing Limited [1983] FSR 502 is to the copyright in the programme ie the software, and the Plaintiffs here appear to me to be suffering from the same ailment that the Plaintiffs in the Thrust Code Case suffered from.

"The results produced by operating the programme must not be confused with the programme in which the copyright is claimed".

Within the affidavits supporting the Plaintiffs' claim in the affirmation of Ariel Hershler a computer scientist and software engineer employed by the first named Plaintiffs he says at paragraph 13:-

"Although the system is extremely secure no encrypted system can be invoilable."

It is the Plaintiffs' case that a card could be analysed by an electron microscope or similar device but no such examination has been carried out by the Plaintiffs to thereby obtain a basis of comparison. Further the Plaintiffs say in evidence that they changed the algorithm every few months to increase the security of their operation and in such an event according to the same affidavit the scrambling seeds will have been replaced by scrambling seeds based on a different algorithm and yet the Plaintiffs admit that the Defendants have produced within relatively short periods of time after such change a Smart Card which could operate to descramble the amendment encrypted system. This to me seems to render even more unlikely -- in fact highly improbable -- the Plaintiffs' only explanation for the functional similarity of the two cards namely, copying and to render highly probable the Defendants' claim that they have in no way infringed or copied the Plaintiffs' software.

In my opinion the Plaintiffs in the evidence tendered to the Court at this stage have failed to show that they have sown the seed which could fructify at the hearing into a stateable case of infringement by copying of a copyright. At most they have merely shown the fruits of the software and not direct evidence of any similarities in the software itself or, if it had been more accurate to say so, they have simply shown the fruits of the respective algorithms used by the respective parties but have not shown direct evidence of any similarities between the algorithms.

An interlocutory application is a discretionary application. The mere fact that the conduct of one of the parties may be questionable in ethics or morality is not a reason, in the absence of a claim at law being established, in stateable form to a Court to grant an injunction to preserve the statu quo. A fortiori the balance of convenience could not be in favour of such a course. The "balance of the risk of doing an injustice" to the Defendant could clearly result.

I accordingly refuse the application