Determination of "Substantial Similar" - Infringement Determination Rules in Computer Software Copyright Cases (Part 1)
Author | Intellectual Property Center, Lawyer Wang Qionghua
Introduction
Computer software has the characteristics of high research and development costs, easy copying, and wide dissemination, which leads to frequent software infringement cases. In judicial practice, computer software copyright infringement disputes have problems such as difficulty in obtaining evidence, complicated and cumbersome infringement comparisons, and large disputes over infringement determination. In the trial of computer software infringement disputes, "contact + substantive similarity + exclusion of reasonable explanation" is a generally applicable computer software infringement judgment rule.
[1]"Specifically, if the accused infringing software work is substantially similar to the specific content of the software work claimed by the plaintiff, and the defendant has the possibility of contacting the work, and the determination based on the evidence in the case has excluded other conclusions to form a conviction, it is inferred that the defendant's actions constitute infringement.
This article analyzes and discusses the "substantial similarity" determination rule in the tort judgment rules for the trial of computer software infringement disputes.
[Key words] computer software, software copyright, infringement determination, substantive similarity
Copyright law only protects expression, not ideas. Therefore, "substantial similarity" refers to the fact that the alleged infringing work is substantially similar to the original expression in the right work. In the case of computer software, the scope of original expression or statutory protection refers to computer programs and corresponding documents.
According to Article 24 of the Regulations on the Protection of Computer Software in our country, the identical or substantial similarity of computer software programs or documents is the basis for judging whether infringement is constituted.
The Supreme People's Court in the dispute between Xinsi Technology Co., Ltd. and Wuhan Xindong Technology Co., Ltd. over infringement of computer software copyright[2]It is pointed out that the situations in which computer software programs are considered to constitute "substantial similarity" in practice are as follows: one is the similarity of text components, that is, the percentage quoted in the program code is used to judge, and the other is the similarity of non-text components, that is, the overall similarity is emphasized as the basis for confirming the substantial similarity between two software.
The so-called overall "similarity" refers to the fact that the two software are substantially similar in terms of the organizational structure, processing flow, and data structure of the program. When judging whether the alleged infringing software and the rights software constitute "substantial similarity", it should be determined by comparing the computer program and the corresponding documents. Usually, the following methods can be used to compare.
1. Compare source and target programs
Comparing the source program with the target program is usually used in software similarity matching, among which the source program comparison is the most direct and convincing comparison method. If the software source programs of both parties are substantially the same, the software can be directly determined to be substantially the same. However, in judicial practice, the defendant often does not provide the source program for comparison, so the target program comparison method is also widely used. If the original and defendant's target programs are substantially the same, and the defendant refuses the source program without justifiable reasons or the source programs of the two parties cannot be compared due to different writing languages, the original and defendant software can be determined to be "substantially the same" in combination with other evidence in the case.
For example, Article 11.6 of the Guidelines for the Trial of Copyright Infringement Cases of the Beijing Higher People's Court (released in 2018) stipulates that when comparing software, the computer software source program claimed by the plaintiff shall be compared with the computer software source program accused of infringement. When the defendant refuses to provide the computer software source program accused of infringement, the computer software object program claimed by the plaintiff may also be compared with the computer software object program accused of infringement.
2.Comparison of software defects and redundant designs
Programmers will inevitably make omissions and produce certain defects in software design, and the generation of such defects is highly accidental, and the probability of the same defects occurring between different software is very small. When the defendant refuses to provide the source program or the target program for comparison, you can consider choosing to compare the defect characteristics of the software.
If the same defect characteristics exist, and the defendant refuses to provide the source or object program without justifiable reasons, it shall be presumed that the original and defendant software are substantially similar.
In this regard, Article 11.8 of the "Guidelines for the Trial of Copyright Infringement Cases of the Beijing Higher People's Court" (issued in 2018) stipulates that if the defendant refuses to provide the source program of the alleged infringing computer software, the plaintiff can provide evidence to prove that the two object programs are the same or similar, or although they are different or similar, but the computer software specific content of the plaintiff's claimed rights exists in the target program of the alleged infringing computer software, or the software results (including software interface, operating parameters, database structure, etc.) are the same or substantially similar, it can be determined that the original and defendant's software are substantially similar.
There are many cases of such comparison methods in judicial practice, for example, in Shi Honglin v. Taizhou Huaren Electronic Information Co., Ltd., a dispute over infringement of computer software copyright[3]The Jiangsu Higher People's Court held that, in view of the common system software defects of HX-Z and HR-Z software, according to the general principles of computer software design, the probability of the same software defects appearing between different software is extremely small when the design is completed independently, while if there are common software defects between software, the probability of the same source program between software is relatively high.
Combined with the relevant facts of the case, the existing evidence provided by Shi Honglin can form a high probability advantage, which is enough to convince this court that the software composition of HX-Z and HR-Z is essentially the same. That is, Huaren Company infringed the copyright of S series software enjoyed by Shi Honglin. For example, in the dispute between Beijing Xinnuoride Software System Co., Ltd. and Beijing Zhiheng Network Security Technology Co., Ltd. Infringement of computer software copyright[4]The Supreme People's Court pointed out that the comparison of source code is not a necessary condition and a necessary link to determine whether the alleged infringing software infringes the copyright of the right software, and the infringement judgment of computer software copyright should still follow the contact plus substantial similarity infringement judgment standard.
If the right holder has provided evidence to prove that the alleged infringing software has the same unique information such as self-named information, design defects, redundant design, etc., it can be considered that the right holder has completed the preliminary burden of proof. At this time, the burden of proof is transferred to the alleged infringer, who should provide evidence to the contrary to prove that the infringement has not been committed.
In cases where the evidence submitted by the right holder can preliminarily prove the establishment of infringement, if the accused infringer does not submit contrary evidence or the contrary evidence submitted is insufficient to overturn the infringement determination, he shall bear the corresponding tort liability.
Xinsi Technology Co., Ltd. and Wuhan Xindong Technology Co., Ltd. Infringement of Computer Software Copyright Dispute Case[5]The Supreme People's Court also held that, in terms of the characteristics of computer software, computer software is generally independently developed by the designer, and based on the operating requirements of the operating system, the program architecture of the relevant general commands will be set up, and the relevant applications that implement the software functions, including independent script execution, will also be set up to achieve the functional purpose of the software. The running results also include the software version, copyright ownership, and help documents and other unique information display content.
Therefore, as a basis for judging whether the software is the same or substantially similar, it includes not only the same or similar source code, object program code and documentation of the two software, but also the same or similar organizational structure, output and input forms of the software as a whole after running the command. In this regard, Synopsys can confirm the similarity or similarity of the two software by providing evidence to prove that the accused software has information content unique to Synopsys' software or erroneous.
3.Comparison of software storage media content, installation process, installation directory, and operating status
The Office of the Supreme People's Court Case Guidance Work is compiled in No. 49 on the Supreme People's Court Guidance Case[6]The article "Understanding and Reference" proposes that:
(1) Compare the contents of the CD-ROM storing the plaintiff's and defendant's software, such as the directory, file number, name, and file size;
(2) Compare the screen display content of the plaintiff and defendant's software installation process, such as prompt information, installation process, and overall interface design style.
(3) Compare the directory of the plaintiff and defendant after the software is installed and the files contained therein, such as the name of the folder and the file, the size of the file, the time when the file was created (modified), and the attribute information of the file.
(4) Compare the operating conditions of the plaintiff and defendant's software after installation, such as the overall design style of the interface, menu functions, running prompts, help information, etc. Xinsi Technology Co., Ltd., Wuhan Xindong Technology Co., Ltd. Infringement of Computer Software Copyright Dispute Case[7]It is also pointed out that if the software name, file name, directory structure, and error information between the defendant's accused computer probe path and the plaintiff's right software are the same, it can be determined that the two software constitute a substantial similarity. If the defendant cannot make a reasonable explanation for this, it can be determined that the accused computer copied the plaintiff's right software.
conclusion
The complex and cumbersome technical requirements for finding that computer software is substantially similar are very high. In judicial practice, if the defendant refuses to provide the software program for comparison without justifiable reasons, if it is found that there is an inherent representation of the rights software in the accused infringing software, the rights software and the accused infringing software form a substantial similarity, and the accused infringer is more likely to contact the claimed software, the burden of proof may be transferred to the accused infringer in accordance with Article 25 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation of Intellectual Property Rights", and the accused infringer is required to submit the accused infringing software source program for comparison by the court Where the alleged infringer refuses to provide the source program of the alleged infringing software, and fails to provide a reasonable and sufficient explanation for the appearance of the inherent characteristics of the software in the alleged infringing software, the people's court shall presume that it constitutes a substantial similarity.
[1] Song Jian and Gu Tao: "Research on Several Issues in the Identification of Computer Software Infringement", in WeChat official account "Jiangsu Intellectual Property Vision" October 27, 2017
[2] (2020) Supreme People's Court No. 1138; (2020) Supreme People's Court No. 1164
[3] In 2015, the Supreme People's Court issued the fifth of the tenth batch of guiding cases [Guiding Case No. 49], case number: (2007) Su Min Sanzhizi No. 0018
[4] The Beijing Intellectual Property Court has released one of the top ten cases of computer software copyright, case number: Supreme People's Court (2021) Supreme People's Court Zhimin End No. 1269
[5] (2020) Supreme People's Court No. 1138; (2020) Supreme People's Court No. 1164
[6] Shi Honglin v. Taizhou Huaren Electronic Information Co., Ltd. Infringement of computer software copyright dispute
[7] (2020) Supreme Court Zhimin End No. 1138
Lawyer Profile
Wang Qionghua, Lawyer
, Partner Lawyer
Secretary General, Copyright Law Professional Committee of Shenzhen Law Association
Secretary General of Zhiheng Intellectual Property Center, Deputy Director of Copyright Committee
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