1Enterprise Practice

    Computer software rights holders need to prove that the accused infringing software constitutes their own software when safeguarding their rightsSubstantial similarity. Generally speaking, the parties involved can determine whether their software constitutes substantial similarity through source code comparison. However, the source code often involves trade secrets, and both the rights holder and the accused infringer are unwilling to show the entire source code to the other party, which creates a burden of proof.

 So what content can the rights holder provide to break the burden of proof and prove that the other party plagiarized their own software? This article answers the above question by analyzing the dispute between Beijing Xinnuo Ruide Software System Co., Ltd. and Beijing Zhiheng Network Security Technology Co., Ltd. over infringement of computer software copyright.

IICase Explanation

（one）Key points of court trial

In computer software copyright infringement disputes, the comparison of source code is not a necessary condition or necessary link to determine whether the accused infringing software infringes on software copyright. The infringement judgment of computer software copyright should still follow the infringement judgment standard of contact plus substantial similarity. according toThe principle of "whoever asserts, who bears the burden of proof" should first be borne by the right holder, who bears the burden of proof for contact and substantial similarity. In the case where the evidence submitted by the right holder can preliminarily prove the establishment of infringement, if the accused infringer has not submitted contrary evidence or the contrary evidence submitted is insufficient to overturn the infringement determination, they shall bear corresponding infringement liability.

（two）Case Background

supreme people 's court(2021) Supreme People's Court Notice No. 1269, this case has been rated as one of the top ten cases in the field of computer software copyright in 2021.

Beijing Xinnuo Ruide Software System Co., Ltd. (hereinafter referred to as "Xinnuo Ruide Company" or the plaintiff) developed a certain software in December 2015 and registered it in September 2016.

2. Non party Fan joined the plaintiff's company in April 2009 and officially resigned from the company in February 2015. On March 1, 2017, Fan joined Beijing Zhiheng Network Security Technology Co., Ltd. (hereinafter referred to as "Zhiheng Network Security Company" or the defendant).

In April 2018, the plaintiff discovered that the software sold by the defendant was similar to the software developed in 2015. Therefore, the plaintiff filed a lawsuit with the Beijing Intellectual Property Court, demanding that the defendant stop infringing, apologize, compensate for economic losses, and reasonably pay for rights protection.

In the first instance trial, the plaintiff provided evidence that there were 24 similarities between the software of both parties, including naming conventions, types of development tools used, etc. However, neither party has submitted the complete source code, making it impossible to complete the source code comparison. The plaintiff further claims that there are completely consistent errors in fault monitoring, hot standby function naming, and other aspects between the two companies' software, and that the plaintiff's developers have resigned to the defendant company, which may expose the defendant to the plaintiff's software.

5. The Beijing Intellectual Property Court found infringement established in the first instance and ruled that the defendant should apologize and compensate for losses.

6. The defendant is dissatisfied and appealed to the Supreme People's Court. The Supreme People's Court rejected the appeal and upheld the original judgment.

threekey issue in dispute

Is it sufficient to determine whether there are identical errors between the original and defendant software without comparing the source code'Substantial similarity'?

（three）Court's viewpoint

oneOpinion on the First Instance Judgment of Beijing Intellectual Property Court

The accused infringing software contains the same errors and redundant content as the copyrighted software, such as theThe "dual machine hot standby function" is named "smartb", which is the same as the naming in the rights software. However, this naming is a naming error made by the plaintiff during development and has no reasonable reason. The same error appears in the accused infringing software, which is contrary to common sense. At this point, if the defendant fails to fully fulfill their burden of proof without justifiable reasons and fails to prove the substantive differences between the accused infringing software and the copyrighted software, they should bear the adverse consequences of the inability to provide evidence.

twoSupreme People's Court's Second Instance Opinion

In computer software copyright infringement disputes, comparing source code is not a necessary condition or necessary step to determine whether the accused infringing software infringes on the software copyright. If the right holder has already provided evidence to prove that the accused infringing software has unique information such as proprietary naming information, design defects, redundant designs, etc. that are the same as the rights software, it can be considered that the right holder has completed the preliminary burden of proof. At this point, the burden of proof shifts to the accused infringer, who should provide opposite evidence to prove that no infringement has been committed.

In this case, the plaintiff has submitted relevant evidence within its ability to provide evidence, fulfilling the preliminary burden of proof, especially regarding the creative part of the software. The accused infringing software directly appeared under the former name and incorrect naming of the copyrighted software. Although the defendant denies using the copyrighted software, they have not provided a reasonable explanation for the unreasonable similarities mentioned above, nor have they provided contrary evidence to prove that they have not committed any infringement. Therefore, the original court believes that the accused infringing software and the copyrighted software constitute substantial similarities with legal basis. In the case where the plaintiff has proven that the defendant has the possibility of accessing the rights software, that the two software are substantially similar, and that the defendant has not submitted evidence to the contrary to refute it, the original court found that the defendant infringed the copyright of the plaintiff's rights software without any impropriety, and this court does not support the defendant's appeal reason accordingly.