Regarding network infringement, the National People's Congress's "Decision on Maintaining Internet Security" stipulates that "those who use the Internet to infringe upon the legitimate rights and interests of others and constitute civil infringement shall bear civil liability according to law". This judgment shows that traditional laws can be applied to network infringement, and the infringer can be investigated for civil liability. According to Article 29 of the Civil Procedure Law, a lawsuit brought for infringement shall be under the jurisdiction of the court in the place where the infringement is committed or where the defendant has his domicile. Regarding the determination of "the place of infringement", the Supreme Court explained that the place of infringement includes the place where the infringement was committed and the place where the infringement result occurred. However, the global, virtual, decentralized management, man-machine separation and other characteristics of Internet space make it very different from the traditional physical space. Compared with traditional tort sites, cyber tort sites have the characteristics of non-uniqueness, transnational and pasting. Therefore, how to determine the "infringement place" of network infringement becomes more complicated, which is the domicile of the infringer, the compilation place of infringement information, the uploading place of infringement information or the location of the used network server. And where does the infringement result occur-can the location of every terminal device that can browse the infringing content be regarded as the location where the infringement result occurs?
Based on the judicial interpretation of the Supreme Court, the author divides the "infringement place" of network infringement into the following five categories:
1. The location of infringing computer terminal equipment is the place where infringing information is compiled and uploaded.
Second, the location of the network server that publishes infringing content. Compared with the virtual website, the location of the server is relatively stable and highly correlated. The court where the server is located is more likely to integrate the network infringement dispute case with the traditional jurisdiction principle.
3. Server locations of other websites that provide link services. In practice, once the infringing information is uploaded, it will soon be widely spread through a large number of links, which is different from actively uploading infringing information. How to define the place of infringement at this time? According to the judicial interpretation of the Supreme Court, the location of infringement at this time should be based on the address of the server.
4. The location of the computer terminal equipment where the infringing content is found. The judicial interpretation of the Supreme Court stipulates that if it is difficult to determine the place of infringement and the defendant's domicile, the location of the computer terminal equipment where the plaintiff found the infringing content can be regarded as the place of infringement. Therefore, there is a prerequisite that the location of the computer terminal equipment where the infringing content is found is the place of infringement, that is, "it is difficult to determine the place of infringement and the defendant's domicile" to prevent the generalization of the provisions of the place of infringement.
5. The place where the infringement result occurred. Due to the particularity of the Internet, a piece of infringing information can spread all over the world in an instant. Therefore, in theory, any place in the world can be regarded as the place where the infringement results occur. Therefore, the author believes that the place where the infringement result occurs must also have a prerequisite, that is, "it is difficult to determine the place of infringement and the defendant's domicile" before it can be applied.
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As professional lawyers, we often encounter such problems in the practical work of representing computer software infringement cases. The plaintiff accused the defendant's software of infringing his copyright, and provided the court with a lot of evidence to prove his claim, while the defendant also provided the court with a lot of evidence to prove that his software did not constitute infringement. When both the defendant and the defendant prove that their software was independently developed, what methods and standards do judges usually use to judge whether the accused software is infringing? Undoubtedly, it is the key to clarify the ownership of software copyright, and the time when software development is completed is one of the important evidences. Only the software completed first can be accused of infringing on the software products that appear later. As for whether the software products that appear later really constitute infringement, there are many cases. Because according to the provisions of the Copyright Law of People's Republic of China (PRC), computer software products are protected by the copyright law, which clearly stipulates that copyright is obtained through independent creation, which is not necessarily related to time. Therefore, what factors judges usually rely on to determine the legal facts of computer software infringement cases has become the key to winning the case.
In practice, we all know that there are two forms of computer software infringement: one is copying the basic elements or structure of the program, which is relatively easy to prove, because copying is complete copying, and as long as it is exactly the same, it constitutes infringement. Second, just copy some software codes according to certain rules and order. In the second case, the court usually examines whether the defendant has stolen enough software program expressions when making a judgment. In practice, this problem is more complicated and difficult to judge, because there is no fixed number limit on how many copies of computer software products are required to be judged as plagiarism infringement. Of course, the larger the number of copies, the easier it is to obtain evidence to prove infringement, but the extent to which it can be recognized as infringement is not well determined in judicial practice.
For the case of a small number of copies, most of the standards currently adopted by the court include:
One is contact attachment. According to this standard, as long as the connection is found, any reproduction will be considered as infringement. However, we think this view has some limitations, because it ignores the verification of whether there is "substantial" similarity between two software works, and extends the protection scope of computer software to the "ideas" contained in computer programs, which is contrary to the basic spirit of the newly revised Copyright Law and the Regulations on the Protection of Computer Software in China.
Secondly, it needs to analyze the computer software program in two steps. First of all, the court must confirm whether the "ideas" embodied in the two computer software programs are the same: if they are different, they do not constitute infringement; If they are the same, then the second step should be to try to verify whether the programs of the above two kinds of computer software are substantially similar in "expression form".
The third is the superposition standard that is widely recognized by all parties. According to this standard, the plaintiff must prove: 1. When completing its software product, the defendant "used" the program works that the plaintiff enjoyed the prior software copyright without permission; 2. The defendant's software work is a kind of overlapping copy, that is, the substantial part of the plaintiff's software product overlaps with the content developed by himself. This standard mainly focuses on the "similarity in quality and quantity" between two software products, which is a good judgment method in practical application.
By summarizing the experience of representing computer software infringement cases for many years, we believe that the most direct and effective criteria for identifying computer software infringement are substantive similarity and proximity.
In practice, the criterion for judging whether two software works are "substantially similar" is whether the accused computer program is very similar to the plaintiff's computer software product. There are two kinds of "substantial similarity" of computer software programs: one is the similarity of text components, which is judged according to the percentage quoted in the program code; The second is the similarity of non-text components, which emphasizes to confirm the substantive similarity of the two softwares based on the overall similarity. The so-called overall similarity refers to the similarity between the two software products in the organizational structure, processing flow, data structure, output mode, required input form and so on.
Computer software programs have many features that have been used to identify whether two programs are similar, including:
1, whether the outputs produced by the two programs are similar;
2. Whether the inputs accepted by the two programs are similar;
3. Whether the data structures of the two programs are similar;
4. Whether the logical processes of the two programs are similar.
In the expert appraisal and technical comparison of computer software infringement cases, each of the above features has become the key comparison point for the appraiser to further analyze in detail whether the expressions of the two computer programs are consistent, and it is through the comparison of these key points that the appraiser draws the appraisal conclusion for the judge's reference. If there is no similarity between these features, there is actually no possibility of infringement. Of course, even if each feature is the same or similar to a certain extent, it can't completely prove the occurrence of infringement, because apart from the similarity in function, it is more important to realize the similarity in expression of computer programs, because usually the functional features mainly reflect the design idea of software developers, and according to the Copyright Law of People's Republic of China (PRC) and the Regulations on the Protection of Computer Software, this design idea itself is not protected by copyright law, because there may be many different ways to realize the same function. Just having the same functional characteristics does not prove that the computer software program codes are the same.
Another important factor to prove computer software infringement is contact. The so-called "contact" means that the plaintiff's software products have been sold publicly, or the defendant's main software developers have worked in the plaintiff's office, or there has been a cooperative relationship between the original and the defendant, which usually proves that the defendant has the opportunity to contact the core content of the plaintiff's software products, so that the defendant's software development work is suspected of "learning from" the plaintiff's software core content.
When judges use the standard of "substantial similarity plus connection" to judge infringement in the trial process, "connection" is easy to prove, because the employment cooperation relationship that existed in the early stage often has corresponding documents as evidence, and the evidence that the software has been published and sold is not difficult to obtain. What is more difficult to prove is "substantial similarity", because under normal circumstances, if a pirate copies a computer program, his copying behavior is not limited to the same copying, but also includes the disguised modification made by the infringer to cover up his plagiarism, which is very prominent in computer software infringement cases. In the development of computer software, the use of text editing programs enables a software pirate to cover up his act of copying other people's source code and object code by renaming and rearranging the order of operation and instruction sequence. If you are not a professional, you often cannot recognize this situation. In view of the existence of excessive computer software infringement, many computer software copyright owners often adopt the method of "adulteration" in software development, that is, adding meaningless and useful instructions to computer programs, or using unique code sequences that are unlikely to be discovered and modified by pirates as "camouflage marks" to protect programs. In this way, if the infringer copies, the computer programs and documents will have the same characteristics or errors as the original software copyright owner. In the process of hearing infringement cases in the court, the infringer often can't provide a reasonable explanation for this phenomenon to the judge, which becomes very convincing evidence for the plaintiff to determine the defendant's infringement in the course of litigation. Although according to China's Copyright Law and Regulations on the Protection of Computer Software, as long as there is infringement, no matter whether the software copyright owner uses the above-mentioned "adulteration" technical protection means or not, no matter how many intangible superficial changes the pirates have made, they will bear the legal responsibility for infringement. However, it is not easy to punish pirates by law without certain skills, because objective facts must be proved by legal facts before they can be protected by law.
In the process of the court hearing a case to determine whether there is infringement, if the plaintiff can produce evidence to prove that the defendant has "touched" its computer software products and there are substantial similarities between the two software works, the court will consider that the plaintiff has completed the burden of proof for the alleged infringement. Once the plaintiff produced these two pieces of evidence, the burden of proof shifted to the defendant. The judge will ask the defendant to prove that his software product is independently created or legally authorized, and the defendant needs to submit to the court relevant evidence of his independent creation and completion of the software product, as well as relevant evidence of legal authorization. The shift of burden of proof helps the plaintiff to claim his rights.
The evidence chain of mutual evidence formed by "substantial similarity and connection" presents a preliminary and superficial fact to the court: is the defendant's own software formed by "using" the substantial and valuable information in the plaintiff's software program? Is the expression of key software program protected by plaintiff infringed by defendant? This kind of judgment standard is different from the traditional method of judging infringement by the court, which is more comprehensive and objective, and the result often reflects the objective situation more truly and is more acceptable to both the original and the defendant.
The standard of "substantial similarity plus connection" has not been fully recognized in legislation, but it has been widely used in judicial practice. In the process of handling computer software copyright infringement cases, we found that many judges are slowly accepting this new concept, especially in the United States, because the common law system adopts the case law system to hear cases, the above criteria are widely used in the judicial trial of computer software copyright infringement cases and have been playing an active role. With the rapid development of China's market economy, China has paid more and more attention to the protection of intellectual property rights, and its prominent position has been recognized. Strengthening the protection of intellectual property rights has gradually expanded from the legislative field to the judicial and law enforcement fields, and computer software has increasingly become the focus of legal protection of intellectual property rights. Especially after China's accession to the WTO, it is imperative to establish and improve the domestic legal protection system of intellectual property rights and improve national laws and regulations with reference to international practices and according to the Constitution of the World Intellectual Property Organization to which China is a member. It is believed that in the atmosphere and social environment of strengthening the legal protection of intellectual property rights, the standard of "substantial similarity plus connection" is not only beneficial for judges to correctly hear cases of computer software copyright infringement, but also beneficial for software enterprises to establish the awareness of software copyright protection, so as to better promote the rapid and healthy development of China's computer software industry on the premise of fully protecting the interests of computer software copyright owners.