13 22131 001 Complaint PDF

Case 1:13-cv-22131-JLK Document 1 Entered on FLSD Docket 06/14/2013 Page 1 of 61
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION
SEGUROS UNIVERSALES, S.A., a Guatemalan anonymous society, FIANZAS UNIVERSALES, S.A. n/k/a ASEGURADORA FIDELIS, S.A., a Guatemalan anonymous society, and ORDENADORES, S.A., a Guatemalan anonymous society, Plaintiffs, v. MICROSOFT CORPORATION, a Washington corporation, Defendant.
CASE NO.
COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF Plaintiffs, SEGUROS UNIVERSALES, S.A., FIANZAS UNIVERSALES, S.A. and ORDENADORES, S.A., by and through undersigned counsel, sue MICROSOFT
CORPORATION, and in support thereof states as follows: SUBJECT MATTER JURISDICTION AND VENUE 1. This is an action for damages and injunctive relief pursuant to 18 U.S.C. 1964
(the Racketeer Influenced and Corrupt Organizations Act or RICO). This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331 (federal question). 2. Furthermore, this Court has diversity jurisdiction pursuant to 28 U.S.C. 1332
because this dispute is between citizens of a State and citizens or subjects of a foreign state, and the amount in dispute exceeds $75,000.00, exclusive of interest and costs.
3.
Venue is proper in this District pursuant to 18 U.S.C. 1965(a) and 28 U.S.C.
1391(b) and (c). THE PARTIES AND PERSONAL JURISDICTION 4. Plaintiff SEGUROS UNIVERSALES, S.A. (Seguros) is an anonymous society
organized and existing under the laws of Guatemala. 5. Plaintiff FIANZAS UNIVERSALES, S.A. n/k/a ASEGURADORA FIDELIS
S.A. (Fianzas) is an anonymous society organized and existing under the laws of Guatemala. 6. Plaintiff ORDENADORES, S.A. (Ordenadores) is an anonymous society
organized and existing under the laws of Guatemala. 7. Defendant MICROSOFT CORPORATION (Microsoft) is a corporation
organized and existing under the laws of Washington and is subject to the personal jurisdiction of this Court because Microsoft does substantial and not isolated business in the State of Florida. ALLEGATIONS COMMON TO ALL COUNTS A. 8. Plaintiffs Are Well Established Legitimate Guatemalan Businesses Plaintiff Seguros Universales is a major Guatemalan insurance company founded
in 1962. Seguros Universales has 243 employees, enjoys annual revenues of US$38Million and is ranked the fourth (4th) largest insurance company in Guatemala by revenues. Universales is a well established legitimate business. 9. Seguros's affiliate, Plaintiff Fianzas, is likewise a well established legitimate Seguros
business. Established in 1976 to provide smaller insurance coverage and surety services, Fianzas Universales has 53 employees and is ranked the second (2nd) largest surety company in Guatemala by annual revenues of US$5.25Million.
10.
Ordenadores is the above Plaintiffs affiliate.
Ordenadores provides internal
information and telecommunications services to Plaintiffs and is the title holder of Plaintiffs computer servers. 11. To aid in the conduct of their businesses, like myriad other legitimate companies,
Plaintiffs purchased, installed and operated Microsoft licensed software including Microsoft's Windows operating systems with its Microsoft Office suite of software (e.g., Microsoft Word, Excel, Power Point, Publisher, and Outlook). B. Microsoft - With the Aid of Multiple Co-Conspirators - Fraudulently Obtains a Guatemalan Seizure Order Microsoft needs but little introduction. The U.S. multinational software
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corporation develops, manufactures, licenses, and supports a wide range of products and services related to computing. Microsoft is the world's largest software maker measured by revenues of US$73.72Billion. By any definition, Microsoft is a Goliath. 13. On or about March 7, 2012, Microsoft, filed a complaint requesting an ex parte
seizure order under Guatemalan law alleging that the company, SEGUSA, SOCIEDAD ANONIMA, (not any of the Plaintiffs) was operating Microsoft proprietary software ("Microsoft Software") without license in violation of Microsoft's intellectual property rights. See certified English translation of Microsoft's Guatemalan Complaint and Motion for Seizure Order ("Microsoft's Seizure Motion"), including copy of the original, attached hereto as Composite Exhibit "A," at 5. 14. By sworn declaration, on or about March 20, 2012, Microsoft amended the facts
alleged in its Seizure Motion to state Plaintiffs were the actual occupants of the suspected offices. A certified translation into English of Microsoft's Sworn Declaration, including a copy of the original, is attached hereto as Composite Exhibit "B."
15.
Microsoft's obviously cookie cutter declaration against an unrelated SEGUSA
demonstrates Microsoft's shoddy "investigation" (if any) and fraudulent sworn accusations. Microsoft never explained this glaring inaccuracy to the Guatemalan Court, of course. 16. Microsofts Sworn Declaration falsely states that by a certain letter of June 9,
2008, Microsoft invited Fianzas and Seguros to resolve alleged software infringement violations and that these Plaintiffs ignored the request. A certified translation into English of the June 9, 2008 letter, including a copy of the original, is attached hereto as Exhibit "C." Microsofts declaration is an outright fraud. 17. Starting in 2008, at least with respect to Plaintiffs, Microsoft carried out a
fraudulent scheme to extort monies from its licensees under ostensible copyright policing and enforcement. 18. In 2008, 2010 and 2012 (every two (2) years) Microsoft sent out cookie cutter
demands on Fianzas and other licensees demanding the licensees complete certain software licensing compliance reports. 19. 20. 21. 22. 23. been closed. 24. Contrary to the demonstrable facts, however, by sworn declaration of March 22, Each time, Fianzas and its related companies complied. Fianzas complied in 2008. Fianzas complied in 2010. And, Fianza complied in 2012. Indeed, in 2012 Microsoft communicated to Fianzas that its investigation had
2012, Microsoft falsely represented that Microsoft's records do not reflect any volume purchase of software that supports the software Plaintiffs were using. A certified English translation of
Microsoft's March 22, 2012 Sworn Declaration, including a copy of the original, is attached hereto as Exhibit "D." 25. In support of this false Sworn Declaration, Microsoft attached a letter also dated
March 22, 2012 from Microsofts co-conspirator Business Software Alliance ("BSA"), stating that BSA's Ms. Duran had personally reviewed Microsoft's sales records corresponding to each of the Plaintiffs and (paraphrasing): Microsoft's records do not reflect any volume purchase of software that supports the software Plaintiffs are using. See id., certified English translation of BSA's letter, including a copy of the original. 26. In addition, Microsoft attached the March 16, 2012 letter of Microsoft de
Guatemala, S.A. ("Microsoft Guatemala") certifying the credentials of a certain Juan Carlos Fletes Monroy that Microsoft offered as a licensed expert witness. See id., certified English translation of Microsoft Guatemala's letter, including a copy of the original. 27. On information and belief, Microsoft Guatemala is the Guatemalan corporate
vehicle through which Microsoft operates in Guatemala. 28. In addition, on information and belief, Microsoft falsely declared that at least one
of the Plaintiffs was operating a CALL CENTER using pirated Microsoft software. 29. The prosecutors investigator, however, concluded in a report that, no CALL
CENTER operated at Plaintiffs headquarters. This further demonstrates Microsoft's shoddy investigation, if any. 30. By sworn declaration of its agent, on or about April 26, 2012, Microsoft amended
the facts alleged in its Seizure Motion to state "ORDENADORES, S.A." was also infringing Microsoft copyright.
31.
Based on the foregoing shoddy pre-suit "investigation" and on patently false
sworn declaration of facts, Microsoft secured a seizure order from the Guatemalan Court. C. Microsoft - With the Aid of Multiple Co-Conspirators - Fraudulently Raids Plaintiffs Business and Extorts a Payment of US$70,000 On April 27, 2012 Microsoft appeared at Plaintiffs' business offices occupying
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seven (7) stories of a prominent commercial building in Guatemala City and housing more than 240 of Plaintiffs employees. 33. Microsoft appeared with armed Guatemalan law enforcement officers and halted
Plaintiffs business operations. Microsoft then proceeded to extort Plaintiffs by demanding an on the spot agreement to pay US$70,000 or Microsoft would remove all of Plaintiffs' servers containing ALL of the Plaintiffs' data and operational software. 34. Microsoft and its co-conspirators forced Plaintiffs' to capitulate to Microsoft's
extortion to avoid the complete shutting down of their businesses for what would have been an unknown amount of time. 35. Forced to choose between being impaled by Scylla or Charabis, Plaintiffs were
forced to pay Microsoft US$70,000 to avoid the complete interruption of their businesses which would, among other things, result in Plaintiffs inability to service the insurance needs of their customers. Again, Seguros is ranked the fourth (4th) largest insurance company in Guatemala and Fianzas is ranked the second (2nd) largest surety in Guatemala. 36. At Microsoft's express instructions, Seguros, on behalf of Plaintiffs, made four (4)
installments payments as follows. At Microsofts direction, Seguros made the first payment to Microsofts agent and co-conspirator Sofier Trading World and the remaining three (3) payments to Microsoft directly into a U.S. bank account.
37.
Although Microsoft operates in Guatemala through the Guatemalan corporation
Microsoft Guatemala, on information and belief, Microsoft diverted payment away from that Guatemalan entity and failed to disclose Microsoft's U.S. receipt of the payment to the Guatemalan authorities, as to evade Guatemalan tax laws and improperly shift the financial burden of paying those taxes to Plaintiffs. 38. As a result of Microsofts tax evasion, Seguros, on behalf of Plaintiffs, was forced
to pay the amount of Microsofts $21,000 (i.e., 31% of $70,000) tax liability to the Guatemalan government, resulting in additional damage to Seguros. D. Contrary to Microsofts Fraudulent Sworn Declarations, Plaintiffs Have Already Documented At Least 98% of their Licenses As set forth above, Microsoft represented to the Guatemalan Court that it had
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conducted a reasonable investigation and that its investigation had discovered Plaintiffs copyright infringement. The foregoing are bald faced lies and misrepresentations. 40. In truth and in fact, Plaintiffs had purchased and were operating their Microsoft
software lawfully. 41. Plaintiffs have documented valid licenses for at least 98% of their Microsoft
software. Although Plaintiffs have not yet located the documentation of their valid licenses for the remaining 2% of the Microsoft software, on information and belief either (a) Microsoft's records will contain such documentation; or (b) these programs did not require licenses. Plaintiffs search for the remaining documentation will continue. 42. In this manner, Microsoft and its co-conspirators (a) shut down Plaintiffs
business operations for a day, (b) extorted an unjustified US$70,000 payment from Plaintiffs, and (c) fraudulently transferred Microsoft's tax liability for that same payment to Plaintiffs when at worst Plaintiffs were 98% compliant with their software licenses. This, in a country
with an average compliance rate of a mere 20%. See Exhibit "B" at 1, Microsoft's letter, stating "Guatemalas software piracy rate (80%) is the second highest in Central America." 43. In addition to its immense legitimate business endeavors, Microsoft and its co-
conspirators are also engaging in a worldwide criminal enterprise to wrongfully extort monies from innocent licensees under the guise of Microsofts worldwide intellectual property enforcement programs. E. 44. Microsoft Fraudulent Scheme Continues Unimpeded As if the foregoing were not enough to shock the conscience, by e-mail of
December 18, 2012, and despite its recent seizure, Microsoft has renewed its demand that Fianzas and its related companies - now including Neutra Uno comply with yet another Microsoft audit. 45. world. FULFILLMENT OF CONDITIONS PRECEDENT, ENTITLEMENT TO ATTORNEY'S FEES AND PUNITIVE DAMAGES 46. All conditions precedent to the maintenance of this action have been performed, If unchallenged, Microsoft will continue its criminal scheme throughout the
have occurred, or have been waived or excused. 47. Plaintiffs have retained the undersigned attorneys to bring this action and are
obligated to pay a reasonable attorneys fee for their services. Plaintiffs' are entitled to an award of their attorney's fees against Microsoft pursuant to 18 U.S.C. 1964(c). 48. Because Microsofts actions as described herein were performed with actual
malice, ill will and gross indifference to or with reckless disregard of Plaintiffs rights, and amount to willful and wanton acts which were deliberate and without reasonable cause or basis, Plaintiffs seeks punitive damages.
COUNT I: RACKETEERING BY MICROSOFT (IN VIOLATION OF 18 U.S.C. 1964) 49. Plaintiffs adopt and reallege the allegations set forth in paragraphs 1 through 48
above as if fully and expressly set forth herein and further allege as follows. 50. Microsofts actions as alleged above are unconscionable acts or practices and
unfair or deceptive acts or practices within the meaning of Fla. Stat. 501.204 (2013). 51. The operations of Microsoft in its international intellectual property enforcement
programs and consequent dealings with Plaintiffs constitute a racketeering operation. 52. Microsofts fraudulent intellectual property enforcement operations constitutes a
RICO enterprise (the Microsoft Rico Enterprise") within the meaning of 18 U.S.C. 1961(4), which enterprise was engaged in, or the affairs of which affected, interstate and foreign commerce. 53. 54. The Microsoft Rico Enterprise engaged in a pattern of racketeering activity. The Microsoft Rico Enterprise engaged in the following predicate acts of
racketeering within the meaning of 18 U.S.C. 1961(1): a. b. c. d. 55. Mail fraud in violation of 18 U.S.C. 1341; Wire fraud in violation of 18 U.S.C. 1343; Acts interfering with commerce in violation of 18 U.S.C. 1951; and Fraud.
The predicate acts set forth in this Complaint, including defrauding and extorting
the three (3) Plaintiffs including by filing false sworn declarations to secure an improper payment of $US70,000 and to evade Microsoft's tax obligations while shifting them to Plaintiffs, are related, in that they have the same or similar purposes, results, participants, and methods of
commission, and are otherwise interrelated by distinguishing characteristics and are not isolated events. The related criminal schemes set forth in this Complaint constitutes a "pattern or patterns of racketeering activity" as defined in 18 U.S.C. 1961(5). Microsoft engaged in two or more predicated acts of racketeering within a period of ten years and committed at least one such act after October 15, 1970. 56. Microsoft has received income derived, directly or indirectly, from a pattern of
racketeering activity and used or invested, directly or indirectly, part of such income, or the proceeds of such income, in acquisition of an interest in, or the establishment or operation of, the Microsoft Rico Enterprise, an enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce in violation of 18 U.S.C. 1962(a). 57. Microsoft through a pattern of racketeering activity maintains, directly or
indirectly, an interest in or control of the Microsoft Rico Enterprise, an enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce in violation of 18 U.S.C. 1962(b). 58. (1) Microsoft, (2) Microsoft de Guatemala, S.A., (3) Business Software Alliance,
(4) Sofier Trading World, and as yet unidentified additional parties, were associated with the Microsoft Rico Enterprises, and conducted or participated, directly or indirectly, in the conduct of the Enterprises' affairs through the pattern of racketeering activity described herein in violation of 18 U.S.C. 1962(c). 59. (1) Microsoft, (2) Microsoft de Guatemala, S.A., (3) Business Software Alliance,
(4) Sofier Trading World, and as yet unidentified additional parties each entered into a conspiracy to conduct or participate, directly or indirectly, in the conduct of the Microsoft Rico
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Enterprises' affairs through the pattern of racketeering activity described herein, in violation of 18 U.S.C. 1962(d). 60. As a direct and proximate result of Microsofts unlawful actions, in conjunction
with the actions of its co-conspirators and associates, Plaintiffs have suffered damages, including the financial cost attendant to the interruption of each of Plaintiffs business, the extortion of US$70,000, and the extortion of $21,000 representing Microsoft's wrongfully evaded tax liability (i.e., 31% of $70,000). COUNT II: CONSTRUCTIVE FRAUD 61. Plaintiffs adopt and reallege the allegations set forth in paragraphs 1 through 48
above as if fully and expressly set forth herein and further allege as follows. 62. Microsoft committed constructive fraud by on the three (3) Plaintiffs by filing
false sworn declarations to secure an improper payment of $US70,000 and to evade Microsoft's tax obligations while shifting them to Plaintiffs. 63. Plaintiffs have suffered damages as a direct and proximate result of Microsoft's
constructive fraud. COUNT III: ABUSE OF PROCESS 64. Plaintiffs adopts and realleges the allegations set forth in paragraphs 1 through 48
above as if fully and expressly set forth herein and further allege as follows. 65. Microsoft filed false declarations and caused the issuance of a wrongful
Guatemalan seizure order (the "Seizure Order") against Plaintiffs. 66. The Seizure Order was served and subsequently used by Microsoft by and
through their attorneys and agents as officers and agents of the Guatemalan court.
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67.
By fraudulently causing the issuance and service and by subsequently using the
Seizure Order, Microsoft made an illegal, improper and/or perverted use of the court's power, including the courts seizure power. 68. Specifically and subsequent to the issuance of the Seizure Order, Microsoft served
the Seizure Order on Plaintiffs for the sole, malicious, exclusive and only purpose of furthering its concerted plan to extort and wrongfully exert pressure on Plaintiffs to pay Microsot $70,000 to which Microsoft was not entitled. 69. Microsoft in no way intended to use the courts seizure power to achieve an end
for which the seizure power was intended by law to accomplish, i.e., the legitimate and lawful enforcement of copyright. 70. Plaintiffs have suffered damages including attorneys fees, as a direct and
proximate result of Microsoft's improper, illegal, malicious and perverted use of the court's seizure power. COUNT IV: UNJUST ENRICHMENT 71. Plaintiffs adopt and reallege the allegations set forth in paragraphs 1 through 48
above as if fully and expressly set forth herein and further allege as follows. 72. As forth above, as a result of Microsofts tax evasion, Seguros, on behalf of
Plaintiffs, was forced to pay Microsofts tax liability to the Guatemalan government. 73. thereof. 74. Microsoft voluntarily accepted and retained the benefit conferred. Accordingly, Plaintiffs conferred a benefit upon Microsoft who had knowledge
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75.
The circumstances are such that it would be inequitable for Microsoft to retain the
benefits of the $21,000 (i.e., 31% of $70,000) taxes Plaintiffs paid the Guatemalan government which Microsoft should have paid, directly or indirectly. 76. 77. Plaintiffs are without an adequate remedy at law. Plaintiffs have suffered damages as a direct and proximate result of Microsoft's
unjust enrichment.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs, FIANZAS UNIVERSALES, S.A., SEGUROS
UNIVERSALES, S.A., and ORDENADORES, S.A., demand that judgment be entered against Defendant MICROSOFT CORPORATION as follows: (a) (b) (c) (d) (e) damages; statutory trebled damages pursuant to 18 U.S.C. 1964(c); punitive damages; reasonable attorney's fees pursuant to 18 U.S.C. 1964(c); temporary and permanent injunctions enjoining Microsoft from, directly or
indirectly, continuing its above described fraudulent copyright policing scheme against Plaintiffs or any related company; (f) (g) (h) costs; interest; and such other and further relief as this Court deems just and proper.
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DEMAND FOR JURY TRIAL Plaintiffs demand trial by jury on all issues so triable.
Respectfully submitted, THE BOBADILLA LAW FIRM Attorneys for Plaintiffs 20900 NE 30th Avenue, Suite 815 Aventura, FL 33180 Telephone: 786.446.8643 Facsimile: 786.446.8641 By: s/ D. Fernando Bobadilla D. Fernando Bobadilla, Esq. Fla. Bar No. 0136948 fernandob@bobadillafirm.com
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Exhibit "A"
[hand-written: 37608] [stamp: Intellectual Property Crimes Attorney Generals Office] NEW CRIMINAL COMPLAINT [TO THE] ATTORNEY GENERAL OF THE REPUBLIC [OF GUATEMALA]; HEAD OF THE ATTORNEY GENERALS OFFICE; AND THE PUBLIC PROSECUTOR FOR INTELLECTUAL PROPERTY: [I,] Rodolfo Estuardo Varela Martinez, [being] thirty-four years old, married, Guatemalan, an attorney and notary [and] a resident of the department of Guatemala, respectfully come before you and I. STATE [as follows:] I am acting as a Special Judicial and Administrative Legal Representative on behalf of MICROSOFT CORPORATION entities, which I prove through certified copies of notarial deed number twenty-six authorized in this city on June 14, 2007, by notary Juan Pablo Lara Lavarreda. [The aforementioned notarial deed] is duly recorded in the Registry of Powers of Attorney at the Judicial Branch General Archives as numbers one hundred sixteen thousand one hundred forty-seven dash E and zero twenty-eight thousand seven hundred eight dash E, dated June 19, 2007. II. DIRECTION AND GUIDANCE PLACE FOR RECEIVING NOTICES I am acting independently, and provide [the following address] for notices: 3-40 13th Street, Zone Ten, Atlantis Building, Tenth Level, Office One Thousand One, Municipality and Department of Guatemala.
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III. BASIS FOR ACTIONS My client has learned that software without a license for use is being utilized at the building located at 7-73 Fourth Street (Zone Nine) in Guatemala City (Department of Guatemala), thus clearly violating its rights as the owner of the copyrights. I base my claim on the facts and legal considerations noted below: IV. FACTS My client, MICROSOFT CORPORATION, makes computer programs (also known as software), and owns the copyrights of the works it produces. As established by our legislation in Article 4 of the Copyright Law, a computer program is the work made up of all instructions expressed through words, codes, plans or in any other way that, when incorporated by machine into a legible support, is capable of making a computer execute a certain task or obtain a certain result. [stamp: Intellectual Property Crimes Attorney Generals Office] It is worth mentioning that, as set forth in Article 30 of the referenced law, computer programs are protected in the same way as literary works, covering both operating systems and applications. Similarly, Article 21 of the law provides that Only copyright owners and those expressly authorized by them may use the work in any way... Thus, [copyright owners] may defend their moral and property rights to the works, which cover, inter alia, any of the following acts: A. B. Authority to use the work directly and personally; Partially or completely assign rights thereto;
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C. D.
Authorize or prohibit its use and exploitation by third parties; Reproduce and totally or partially set the work into any type of material support, format or medium, either temporarily or permanently, through any process, whether [currently] known or to become known [in the future];
E. F.
Communicate [to] the public, either directly or indirectly, through any process or medium, whether [currently] known or to become known [in the future]; [and] Distribute to the public the original or copies of the work, either by sale, lease, loan or in any other way.
My client owns the copyrights to the works it produces, such as all versions of Microsoft Windows; Microsoft Office Word; Microsoft Power Point; Microsoft Excel; Microsoft Outlook; [and] Microsoft Publisher, just to name a few, and without excluding the remaining software, to which my client owns the aforementioned rights, including all moral and property rights thereto. Accordingly, illegal reproduction of those works constitutes a clear copyright violation. Similarly, as established in pertinent part by Article 3 of the Copyright Law and Related Rights, use and exercise of copyrights and related rights acknowledged in this law are not subject to registration or any other formality of registration, and remain independent and compatible among themselves... Copyright ownership may be proved, as established by Article 24 of the Regulations on Copyright Law and Related Rights, which provides, In order to identify the author or owner of rights, any rights protected by law that are published or disclosed may use the expression Rights Reserved, or the abbreviation [in Spanish] D.R., followed by the year in which the protection starts, the letter c enclosed in a circle, and the full name of the copyright owner. In no case shall its omission lead to a loss of respective rights or a limitation on exercising them. Thus, my client owns all of the rights, as clearly demonstrated for each of them. [My clients] name (Microsoft Corporation) appears clearly on them, [as does] the word copyright and the year in which the work was published. Similarly, the programs are found on the official list of products at the following website: www.microsoft.com/es/gt
I am attaching a photocopy [proving] my clients right to request the copyrights defense. A careful examination of the computers and licenses [at issue] must be undertaken, with an inventory of programs installed on each machine to be prepared first. This information may be received on the Add or Remove Programs menu on the Windows operating system and on the computer log accessible through the regedit command, followed by visiting HKEY_LOCAL_MACHINE/SOFTWARE, which has the installation passwords for all software on the system. This inventory must be compared with any licenses held. The golden rule for software licenses is that there must be one for each installed program. If an OEM license, it is only valid if a purchase invoice of the license is shown, along with the computer equipment on which it is installed. For bearer licenses (commonly known as box licenses), a purchase receipt is necessary to prove ownership. Similarly, Article 274 of our Penal Code provides in pertinent part, ... anyone engaging in any of the following acts shall be punished with one to four years in prison and fined from one thousand to five hundred thousand quetzals... c) Reproducing any work, from interpretation to execution, of a phonogram to an emission, without authorization from the corresponding author or copyright owner; ... m) Undertaking any act that induces, allows, facilitates or hides a violation of any exclusive rights of authors, copyright owners, artists or performers, from phonogram producers or broadcasting entities;. Likewise, Article 128(b) of the Copyright Law and Related Rights provides that the following preliminary injunctive measures may be ordered in criminal cases: a) Immediate cessation of illicit acts or illegal commerce regarding the protected work; b) Search of public or private buildings, whether open or closed, to be carried out in accordance with the provisions of the Code of Criminal Procedure; c) Seizure of real and personal property, including, but not limited to, bank accounts held by companies or individuals identified as possible perpetrators or accomplices responsible for the reported illegal act, and seizure of the alleged infringing partys net profits; d) Immediate seizure or confiscation of copies illegally produced from works or
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phonograms , or of merchandise that illegally includes works or phonograms; the instruments used to produce, transport, store, distribute, offer for sale, rent or communicate them to the public in any way. Any property seized or confiscated shall be held in storage by [Guatemalan] customs authorities; e) An order to review accounting files for natural or juridical persons identified as potentially responsible for the illegal act; f) Temporary closure of the store or business where illegal copies of the works or phonograms are found, as well as any other infringing merchandise, media or instruments used to produce them. This measure shall remain in place for whatever time is necessary in order to ensure the results of the process, and may not be lifted while a risk of repeat violation exists or other infringement of rights established by law and in treaties regarding copyright and other related rights of which Guatemala is a party; [and] g) Temporary measures through binding orders that, based on the circumstances, appear more appropriate in order to bring about a temporary cessation of the crime, while protecting rights recognized by this law or preserving evidence or proof related to an actual or imminent violation. Seized or confiscated instruments and objects of the crime shall be held as evidence against the perpetrators of the illegal act. Similarly, Article 181 of the Code of Criminal Procedure provides that, unless otherwise established by criminal law, the Attorney General and the courts must seek out the truth through permitted evidence, while strictly adhering to this code. During trial, courts may only admit evidence not offered by the parties in accordance with the law. As previously expressed, my client has knowledge that a business entity known as SEGUSA, SOCIEDAD ANONIMA is operating at the property located at 7-73 Fourth Street (Zone Nine) in Guatemala City (Department of Guatemala). It is unknown whether the building is [SEGUSA's] headquarters.
Thus, as provided by Article 128(b) of the Copyright Law and Related Rights, and in order to prove the commission of the alleged crime and the responsible parties, my client requests the search, seizure and confiscation of computer equipment and/or media on which illegally reproduced or stored material is found and/or used without my clients authorization, as located at 7-73 Fourth Street (Zone Nine) in Guatemala City (Department of Guatemala). [The foregoing shall be done] in order to protect my clients rights and obtain and preserve evidence, [and] any items seized shall be transferred to the Attorney Generals storage center. V. MEANS OF PROOF A. PARTYS STATEMENT The defendant shall [submit its declaration] through its legal representative, pursuant to the interrogatories to be timely propounded by me. B. EXPERT OPINION Above all, any computer equipment found at the building located at 7-73 Fourth Street (Zone Nine) in Guatemala City (Department of Guatemala). D. [sic] SCIENTIFIC MEANS OF PROOF [blank] E. DOCUMENTARY [EVIDENCE] Consisting of license agreements for using computer programs that are owned by my client, MICROSOFT CORPORATION, and that [the defendant] must have, as well as the accounting books where those purchases are recorded.
F.
INFERENCES Legal and human [inferences] arising from the facts proved.
G.
The results of the search carried out at 7-73 Fourth Street (Zone Nine) in Guatemala City (Department of Guatemala). VI. LEGAL BASIS
Article 42 of the Constitution of the Republic of Guatemala provides [as follows]: Copyright and inventor rights are recognized. The owners of those rights shall enjoy exclusive ownership over their work or invention, pursuant to the law and international treaties. Articles 18 to 21 of that same legal body provide that a copyright includes moral and property rights, [and] that moral rights are inalienable and not subject to the statute of limitations or waiver. On the other hand, property rights offer the authorization to use the work directly and personally, assign any rights thereto partially or completely, and permit or prohibit its use and exploitation by third parties. Article 21(2) of the aforementioned law provides that only copyright owners and those expressly authorized by them may use the work in any means or form, or through any process... Article 127 of the Copyright Law and Related Crimes provides in pertinent part as follows: The Attorney General may file criminal actions against parties responsible for crimes and offenses regarding Copyrights and Related Rights, as codified in the Criminal Code and other laws. The owner or licensee of the infringed rights may bring about a criminal prosecution by reporting a violation of such rights, or by joining a prosecution already brought by the Attorney Generals office, which shall be obligated to act directly or immediately against the responsible parties... Article 128 of the Law of Copyright and Related Crimes states, The Attorney General, either sua sponte or at the request of a copyright owner or injured party, upon learning of an illegal act
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[and] within the periods established by the provisions of the Code of Criminal Procedure, shall request a judge with jurisdiction to authorize any of the preliminary orders set forth herein, or in the aforementioned Code that are necessary for safeguarding rights acknowledged and protected by this law and in international treaties on the subject signed by the Republic of Guatemala and that are being violated, or for which a violation is imminent... Once the request has been submitted to a judge with jurisdiction, the judge must order urgent preliminary measures, pursuant to the applicable procedural provisions, [thus] authorizing the Attorney Generals office to enforce [the measures], along with any police assistance needed. VII. REQUESTS PROCEDURAL I. II. III. IV. V. VI. VII. To admit this brief, and initiate the respective action; To recognize my legal status [as Microsofts attorney], based on the documents attached hereto; To take note of the address and power of attorney based on which I act, as well as the address listed for receiving notices; To deem the CRIMINAL COMPLAINT filed, as submitted by my client, MICROSOFT CORPORATION; The place to serve the criminal complaint is the building located at 7-73 Fourth Street, Zone Nine, Guatemala City (Department of Guatemala); [That] the evidence noted in the corresponding paragraph be deemed submitted. [That] the [following] preliminary injunctive measures be ordered: the search of the building located at 7-73 Fourth Street, Zone Nine, Guatemala City (Department of Guatemala); in order to protect my clients rights, the seizure and confiscation of computer equipment and/or media on which material [that is] reproduced or stored illegally is found and/or used without my clients authorization; and the securement and storing of evidence.
[stamp: Intellectual Property Crimes Attorney Generals Office] [That] seized items be transferred to the Attorney Generals storage center; VIII. That JUAN CARLOS FLETES MONROY be appointed to assist the Attorney General with the preliminary measures. [Mr. Fletes Monroy is an] expert in computers and computer program licenses, and shall be present during the actions [undertaken]. He may establish which products violate (or dont violate) my clients copyrights, and may receive legal notices at 3-40 Third Street, Zone Ten, Atlantis Building, Tenth Floor, Office 101, Guatemala City (Department of Guatemala), regarding what is found and assist in determining its significance. IX. That the Attorney General be appointed as bailee to store all computer equipment confiscated as a result of the implementation of the preliminary measures, which shall be transferred to the Attorney Generals storage center. SUBSTANTIVE: X. That once decided, this criminal complaint be granted, and the crime of violating copyrights shall be found against the natural and juridical persons responsible for violating my clients rights. LEGAL REFERENCES: I base my petition on [the following] Articles; 42 of the Constitution of the Republic of Guatemala; 1 to 25 [and] 128 to 135 of the Copyright Law and Related Rights; [and] Articles 37, 43, 48, 160, 163, 166, 173, 181, 184, 185, 186, 190, 193, 198, 200, 207, 225, 245, 278, 317 and 318 of the Code of Criminal Procedure. I ATTACH TWO COPIES OF THIS BRIEF AND RELATED DOCUMENTS.
Guatemala, March 7, 2012 PRO SE: [signature] [stamp: Rodolfo Estuardo Varela Martinez Attorney and Notary] [stamp: Attorney Generals Office Office for Continuous Assistance Guatemala, Central America Received on March 8, 2012 Signed: [signature] Time: [hand-written: 11:20]]
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ATTORNEY GENERALS OFFICE District of Guatemala [City] Date Sent: March 8, 2012 Time Sent: 1:08 p.m. [hand-written: 98.2012 Francisco] Criminal Complaint Party Filing Complaint Accused Crime Referred __________________________________________________________________________________________________________ Send to the Attorney Generals Office for Intellectual Property Crimes. I respectfully contact you in order to submit the following criminal complaints. 2012-37608 Rodolfo Estuardo Varela Martinez Microsoft Corporation Comments: Temporarily described as the crime of violating copyrights and related rights. Sent to the Attorney Generals Office to undertake the necessary investigations, and because the illegal act falls within the jurisdiction of the responsible attorney general. Sincerely, [signature] VIANCA ROCIO TOLEDO LOPEZ Assistant District Attorney [stamp: Attorney Generals Office] [hand-written: March 12, 2012, at 10:32]
11
Violation of rights [illegible]
PINT
BUSINESS OPERATING LICENSE General Business Registry of the Republic [of Guatemala] The company [known as] ORDENADORES SOCIEDAD ANONIMA was registered as number 7343 on page 199 of the 41st Book of Companies. Temporary registration: December 13, 1979 Final registration: August 29, 1980 Companys address: 7-73 Fourth Street, Zone 9, Seventh Floor, Guatemala City Nationality: Guatemalan Category: Individual File Number: 100233
Activity: Provide data processing services; import; export; distribute; purchase and sell electronic computer equipment and/or spare parts for computers. Represent domestic and foreign companies. Carry out agricultural, industrial and commercial activities in the Republic of Guatemala and abroad, among others. Date of issuance of this license: Guatemala [City], August 29, 1980 Note: This [business] license must be placed in a visible location. [signature] GENERAL COMMERCIAL REGISTRAR OF THE REPUBLIC [OF GUATEMALA]
12
Exhibit "B"
[seal]
ATTORNEY GENERALS OFFICE Guatemala (Central America)
[stamp: Prosecutors Office for Intellectual Property Crimes Attorney Generals Office Republic of Guatemala]
PROSECUTORS OFFICE FOR INTELLECTUAL PROPERTY CRIMES MP001/2012/37608 FIRST OFFICE (INTELLECTUAL PROPERTY) U L T . O R I C N E G A 8 6 7 3 / 2 1 0 P M At a meeting held at 10:05 a.m. on March 20, 2012, at the Attorney Generals Office located at 7. Avenida 11-20 zona 1 in Guatemala City, Department of Guatemala, [the following person] appeared before the undersigned ASSISTANT ATTORNEY GENERAL: RODOLFO ESTUARDO VARELA MARTINEZ, [who is] thirty-five years old; married; Guatemalan; the holder of identification card number A-1 (955,513) issued in Guatemala City, Department of Guatemala; an attorney and a notary; [and] acting as the SPECIAL LEGAL AND ADMINISTRATIVE REPRESENTATIVE for MICROSOFT CORPORATION, as duly proved on file. [Rodolfo Estuardo Varela Martinez] presented his identification card as a member of the Guatemalan Bar and Guatemalan Notary number 7,235. Accordingly, I proceed as follows: FIRST: As regards the facts investigated, the declarant states [as follows]: He hereby ratifies the entire content of the criminal complaint submitted to the Attorney Generals Office on March 8, 2012. He also modifies this criminal complaint by stating that the companies [known as] SEGUROS UNIVERSALES, SOCIEDAD ANONIMA and FIANZAS UNIVERSALES, SOCIEDAD ANONIMA operate at the referenced property, as proved by submitting an uncertified photocopy of their business licenses showing that their address is the same as that which appears on the criminal complaint, as well as any other legal entity operating on the property and related to the entities. A search shall be made of those companies, and all computer equipment found using my clients software without respective licenses for use shall be immediately seized and confiscated for transfer to a judicial warehouse for custody and storage. SECOND: Similarly, I ratify the request authorizing JUAN CARLOS FLETES MONROY to participate as an EXPERT WITNESS, as proposed by the entities that I represent. THIRD: I am also attaching a copy of a letter received from ELDER GUERRA, TECHNOLOGY MANAGER at those entities, in which they were asked to reduce computer and legal risks of using software without a license. [The letter] gave notice that [such use] is a crime under our laws, with consequences of up to four years of jail and significant fines and indemnities for each illegal software [program] found. That assistance was offered for free. He was also requested to begin the process of correcting all existing irregularities. However, despite having provided sufficient time to make the corrections, no positive response was received from them, and they continue to use software belonging to MICROSOFT CORPORATION without the respective use license. I
am attaching a letter personally delivered to ELDER GUERRA, TECHNOLOGY MANAGER, at those companies, which expresses the foregoing. THIRD: [ sic ] There being nothing further, this document is certified at 10:45 a.m. at the same place and on the same date as when it started. It is set forth on one sheet of bond paper, which is read to the declarant by the ASSISTANT ATTORNEY GENERAL. Having understood its content, purpose, validity and remaining legal effects, [the declarant] ratifies, accepts and signs it, along with the ASSISTANT ATTORNEY GENERAL. [ signature ] (signed) RODOLFO ESTUARDO VARELA MARTINEZ, ESQ. DECLARANT
[ signature ]
FRANCISCO JAVIER RODRIGUEZ LETONA ASSISTANT ATTORNEY GENERAL PROSECUTORS OFFICE FOR INTELLECTUAL PROPERTY CRIMES
[stamp: Prosecutors Office for Intellectual Property Crimes Attorney Generals Office Republic of Guatemala]
Exhibit "C"

[illegible stamp]
Technology Manager Ext.: 2220 eguerra@universales.net
2285 7000 2285 7069

.
Guatemala, June 9, 2008
Avenida Reforma 3-48, Zona 9, Edificio Anel, 01009 Guatemala, Central America www.segurosuniversales.net fianzas@unlversales.net
Impact of Software Piracy in Guatemala and Benefits of Correctly Handling Software Assets at the Company Based on the latest global study of software piracy undertaken by the IDC and BSA, Guatemalas software piracy rate (80%) is the second highest in Central America. For Guatemalan businesspeople, the use of pirated software presents an imminent risk in critical areas such as the following:
Computer Security: Pirated software offers very limited quality and effectiveness. Unlicensed software can allow for viruses and other types of malicious code to enter, potentially damaging from a personal computer to even the companys entire network. This latent reality can easily stop the operation of a business if the attack reaches critical areas, such as customer databases, accounting, forms, websites, etc.
Productivity: Use of pirated software increases time spent by the companys employees in resolving numerous problems and issues associated with this type of program, thus raising operating costs and reducing profitability.
Legal Environment: Copying computer programs without the corresponding authorization infringes upon software ownership rights, which are expressly recognized by Guatemalan law and international treaties of which Guatemala is a party. In addition, Article 274 of the Guatemalan Penal Code criminalizes certain violations of those rights, providing [as follows]: ... anyone undertaking any of the following acts shall be punished by 1 to 4 years in prison and a fine of 1,000 to 500,000 quetzals... (c) Copying a work (...) without authorization from the author or owner of the corresponding right. Copying also includes temporary copying on RAM memory by a user while opening a program (Copyright Law and WIPO Copyright Treaty).
It is important to avoid legal risks and join efforts to fight for respect of software intellectual property.
Exhibit "D"
[stamp: Attorney Generals Office for Intellectual Property Crimes]
[stamp: Attorney Generals Office for Intellectual Property Crimes Received on March 26, 2012 Signature: [signed] Document: [blank] Time: 11:08]
MP001-2012-37608
ATTORNEY GENERALS OFFICE OF INTELLECTUAL PROPERTY CRIMES
[I,] Rodolfo Estuardo Varela Martinez, whose identification is as set forth above, respectfully appear before you and
I. STATE [as follows]:
a.
As part of ongoing campaigns, my client has been sending letters to this entity for years, in order to stress the importance of using software with a license and [highlight] the computer and legal risks [of not doing so].
b.
As part of the investigation of the reported entity, it has been established that [the company] does not have volume licenses for using my clients software. A letter to that effect is attached.
c.
Despite attempts to negotiate with the reported company, it continues to use my clients software without the corresponding use licenses.
d.
Mr. Juan Carlos Fletes Monroy was offered as a licensing expert witness in this case, as proved by a document issued by my client and attached hereto.
1
LEGAL BASIS
Article 28 of the Constitution of the Republic of Guatemala provides [as follows]: Right to Petition: The residents of the Republic of Guatemala may send, either individually or collectively, petitions to the authorities, which must process and resolve them in accordance with the law.
Based on the foregoing, I submit the following
REQUESTS:
I.
[That] this brief and its attachments be deemed received, and shall be added to the corresponding [court] file;
II.
[That] the duly requested measures be undertaken regarding the companies at the aforementioned building.
[Legal basis:] Articles 29, 31, 51, 61, 66 to 79, 106, 426, 428, 429, 430 and 431 of the Code of Civil Procedure and Commercial Code; [and Articles] 141, 142, 143 [and] 165 of the Judiciary Act.
I am attaching a copy of this brief and of the related documents.
Guatemala, March 22, 2012
[Submitted] pro se.
Signed:
[signature]
[stamp: Rodolfo Estuardo Varela Martinez, Esq. ATTORNEY AND NOTARY]

2
BSA
[stamp: Attorney Generals Office Intellectual Property Crimes]
BUSINESS SOFTWARE ALLIANCE
1150 16th Street, NW Suite 700 Washington, DC 20036 Telephone: Fax: (202) 872-5500 (202) 872-5501
TO WHOM IT MAY CONCERN:
I hereby confirm that, as BSAs Regional Director for Latin America, I reviewed the report with purchase records from MICROSOFT CORPORATION for the [following] entities: SEGUROS UNIVERSALES, S.A. and FIANZAS UNIVERSALES S.A. The records do not show volume purchases of the software that they are using.
I issue this [letter] for all purposes that may benefit the interested party.
[signature]
Montserrat Duran BSA Regional Director for Latin America
WWW.BSA.ORG

I
Microsoft de Guatemala 14 Calle 2-51 Zona 10 Edificlo Intercontinental Nivel 11, Oficina 1101 Guatemala, Guatemala
Telephone: (502) 379-3000 Fax: (502) 379-6484
[illegible stamp]
Microsoft
Microsoft de Guatemala, S.A. 14 calle 2-51 Zona 10 Edificio Intercontinental Nivel 11 oficina 1101
We certify that Juan Carlos Fletes Monroy, whose identification card number is A-1937412 (as issued in Guatemala City, Department of Guatemala), has taken various training courses with MICROSOFT CORPORATIONs Latin American Anti-Piracy Division. He is adept at identifying and recognizing original computer programs (also known as software) whose copyrights are owned by MICROSOFT CORPORATION, [having been] produced by that company. Accordingly, he can determine whether a program installed on a computer lacks the corresponding license.
Given the aforementioned persons experience, he may assist the Authorities with determining the legality or unauthorized reproduction of computer programs.
Sincerely,
[signature]
Patricia Mejia Licensing Specialist Microsoft Guatemala

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION

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Venue is proper in this District pursuant to 18 U.S.C. 1965(a) and 28 U.S.C.

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Ordenadores is the above Plaintiffs affiliate.

Ordenadores provides internal

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Microsoft's obviously cookie cutter declaration against an unrelated SEGUSA

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Based on the foregoing shoddy pre-suit "investigation" and on patently false

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Although Microsoft operates in Guatemala through the Guatemalan corporation

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PRAYER FOR RELIEF WHEREFORE, Plaintiffs, FIANZAS UNIVERSALES, S.A., SEGUROS

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Violation of rights [illegible]

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ATTORNEY GENERALS OFFICE Guatemala (Central America)

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2285 7000 2285 7069