On 21 December 2023, the Beijing Intellectual Property Court (“Beijing IP Court”) held a press conference to release the six typical civil cases of computer software copyright protection for 2023. The six typical cases involve typical and hot issues in software industry disputes, including the allocation of the burden of proof for both parties to prove the similarity between the software with copyright and the infringing software being sued, whether the parties can entrust appraisal organizations to carry out consistency comparison on their own and its process specification, whether the party’s webpage template code can be protected as computer software, whether the party’s behavior of disseminating software through information network can be applied to the defense of lawful source, whether the app installation package or driver open for download to the public can be freely copied, modified, and licensed for distribution, and whether the method of determining the infringement of plagiarism and plagiarism type of software can be followed. The following is the introduction and significance of the six cases.
Case 1: Dispute over infringement of computer software copyright between the Plaintiff, a Beijing company, and the defendants, a Shenzhen science and technology company and a Beijing trading company
Brief Summary of the Case: The Plaintiff, a company in Beijing, claimed that it had developed the V11 version of a solar collector control system and successively developed the V12 and V13.1 versions, enjoying the copyright of the software, and the difference between the several versions was within 10%. The Plaintiff entrusted a judicial institute to make an appraisal for its V13 software and the infringing software; the judicial institute unanimously agreed that “ The target code extracted from the solar controller chip sealed by the notary public has consistency with the target code generated after compilation of the source code provided by the trustee”, the Plaintiff claimed that the Defendant constitutes an infringement of copyright. The Defendant argued that the Plaintiff did not provide Annexure 5 of the judicial appraisal and the code comparison details of the document. Therefore, the consistency cannot be verified. Besides, the version of the software used by the Plaintiff for appraisal was V13. Still, it did not submit evidence to prove that it had the copyright for V13 software, and the software with copyright it previously claimed was the V11 and V12 versions, but it changed its claim after the hearing, which should not be allowed.
The Beijing IP Court held that if the software right holder changed the version of the computer software for which protection was sought in the litigation but did not submit the copyright registration certificate, the certificate issued by the authentication organization, the contract of acquiring the right and other prima facie evidence, the claim of the right holder on the ownership of the version would not be supported. If the software right holder commissions an appraisal and the appraisal opinion submitted to the court does not reflect the name or other valid information of the right software, it cannot be recognized that the infringement has been established, and the claim of the right holder shall not be supported.
Main Point of the Decision: The software development process usually carries out version iteration, and the software right holder should promptly apply for copyright registration of the new version after the software is updated. When the parties file a lawsuit, they should first clarify the version and code information of their software and submit the corresponding copyright registration certificate, development process materials, the contract to obtain the right, and other preliminary evidence of ownership; secondly, they should also clarify the version of the infringing software and the corresponding evidence to prove the infringement and avoid unfavorable consequences caused by the mismatch between claims and evidence on file. In particular, when the parties themselves entrust the appraisal organization to appraise the consistency of the allegedly infringing software and the software with copyright, they need to ensure that the two pieces of software to be compared are consistent with the software with copyright and the allegedly infringing software and that the source of the software to be compared, the software version, the code information, and other contents should be reflected in the appraisal opinion.
Case 2: Dispute for Infringement of Computer Software Copyrights between an Information Technology Company and a Hebei E-commerce Company
Brief Summary of the Case: the Plaintiff, an information technology company, is mainly for domestic small and medium-sized enterprises to provide digital marketing services, including template website construction, network promotion services, and the development of a service platform. The Plaintiff found that the Defendant’s website template design, layout, source code, and the Plaintiff’s template are substantially the same, constituting infringement. Defendant defended that the webpage did not belong to the works stipulated in the copyright law, the webpage in question as a general template did not have originality, and the framework structure of the webpage detached from the specific content could not constitute a work on its own.
Case 3: Dispute over infringement of computer software copyrights between a technology company and Sha Mou
Brief Summary of the Case: the Plaintiff, a technology company that mainly develops e-commerce software, the Plaintiff found that the Defendant was selling products on Taobao that infringed its software source code without authorization, which infringes on the copyright of the software, such as distribution rights, information network communication rights owned by the Plaintiff. The Defendant argued that the infringing software source code was purchased from an outsider who agreed to commercialize it and that it should not be held liable for the infringement.
The Beijing IP Court held that the Defendant uploaded the source code of the software with copyright to a network disk without the permission of the right holder of the software and provided download links and passwords through the network store operated by the Defendant for a fee, thus infringing the right holder’s right of dissemination of the software through the information network. However, the above acts did not provide the public with the tangible carrier containing the software, so they did not constitute an infringement of the distribution right. Based on the characteristics of the software and the usual licensing mode, Defendant should know that the right holder would not license others to sell the source code at a lower price and use it commercially, so Defendant’s claim that it would not bear the liability for compensation on the ground that the source code of the software was obtained from an outsider for a fee and that it was not at fault, could not be substantiated.
Main Point of the Decision: The distribution right in computer software copyright controls “the right to make available to the public, by way of sale or gift, the original or a copy of the software”, which is a tangible carrier containing the software, such as a software CD-ROM. Simply uploading the software and making it available to the public for download is “making the software available to the public at a time and place of their personal choice,” which falls within the scope of control of the right to disseminate information on the Internet. Regarding the issue of lawful source, on the one hand, the right of network transmission does not apply to the defense of legal basis; on the other hand, since commercial software generally only provides installation packages to licensees, even if the right holder licenses others to disseminate the genuine installation packages free of charge, the right holder can’t permit others to provide the source code directly for a fee. Therefore, even if the source code is provided by others and claimed to be commercially exploitable, the acquiring party is likely to be found at fault for further dissemination and liable for compensation.
Case 4: Dispute over infringement of computer software copyrights between a Beijing science and technology company and Wen Mou and a Beijing company
Brief Summary of the Case: The Plaintiff, a Beijing-based technology company, was the copyright owner of a camera software and claimed that the similar camera software products released by the Defendant, Wen Mou, in many application market platforms, were identical to the Plaintiff’s software in terms of interface, composition, software interaction, software operation structure, watermark picture, etc. After decompiling, it was found that some codes were almost identical to the Plaintiff’s software, constituting an infringement of the copyright. During the trial, both parties submitted the source code of the corresponding software to the court for similarity comparison.
The Beijing IP Court held that the judgment of substantial similarity of computer software generally compares the similarity of source code. However, source code comparison is one of many ways to judge the significant similarity of computer software. In this case, the source code of the accused infringing software submitted by Defendant differed from the target code of the notarized deposition. It lacked the critical dynamic libraries, so Defendant should bear the consequences of failing to prove. Comparing the MD5 comparison results of the dynamic libraries of the accused infringing software and the software with copyright, except for one active library file which is inconsistent due to the version, the MD5 values of the other five dynamic libraries are the same, and the name of the said dynamic library file also contains the English abbreviation character of the Plaintiff company. Without reasonable explanation, the above evidence can prove that the Defendant has infringing behavior. The final judgment found that the Defendant constituted infringement and bore the responsibility of infringement.
Main Point of the Decision: In developing the cell phone APP, some functions may have been developed by prior software, and the related dynamic library files have been packaged in the APP installation package, which is very convenient to access. If the content is used directly without permission, it may still infringe the copyright of computer software of others. The fact that the APP installation package is open to the public for download generally only means that the right holder permits the user to download and use it. Still, it does not mean that the right holder allows the public to copy or modify the code, so the developer should strengthen the awareness of copyright and pay attention to the fact that it should be used in the scope of authorization of the software open to public download.
Case 5: Dispute over infringement of computer software copyrights between a company in Changsha and a company
Brief Summary of the Case: The Defendant’s employee, Liu Mou, through WeChat, contacted the Plaintiff’s employee, Peng Mou, about electronic seal products agent cooperation-related matters. Peng Mou provided Liu Mou with the test account and password for the background management of the equipment. When the Plaintiff understood Defendant’s publicity of its products, the Plaintiff considered that Defendant was likely to copy its software, infringing on its software modification right; it thought Defendant should stop the infringement and compensate for economic losses and reasonable expenses. The Defendant argued that the website the Plaintiff gave was only the background of the device management and the source code was unavailable. Both parties unanimously confirmed that the website could not be opened. Both sides of the electronic seal product use front-end prompting methods such as WeChat public number message notification or SMS notification, and the equipment has a back-end management page. After investigation and comparison, both sides of the equipment management page login home page design are relatively simple; the Plaintiff’s page is mainly blue, black, and white color, the list of functions is located on the left side of the page, was arranged in vertical columns, including “law enforcement departments”, “equipment list”, “Law Enforcement Officers”, “Announcement List”, “Law Enforcement Records”, “Linkage Law Enforcement”, “Remote Control” and “Remote Control”. The Defendant’s page is mainly in blue and white, with the list of functions arranged horizontally at the top of the page, and contains four items, including “equipment management”, “case management”, “personnel management”, and “seizure warning map”.
The Beijing IP Court held that the determination of plagiarized software copyright infringement follows the principle of “contact + substantial similarity - other sources”. In this case, on the one hand, the Plaintiff claimed that the Defendant had logged into the background webpage of the device management through the test account. Still, the webpage could not be opened due to the Plaintiff’s reasons, and common-sense judgment showed that the product users logging in to the background of the device management did not necessarily lead to access to the software’s source code. The Plaintiff did not provide sufficient evidence to prove that the Defendant had access to the software source code; on the other hand, the copyright law protects expression, not ideas. The survey compared both sides of the equipment management background page; the software interface is substantially different in addition to the same function. Therefore, it was finally concluded that the Plaintiff did not provide sufficient evidence to prove the existence of substantial similarity between the two parties’ software.
Main Point of the Decision: To determine whether plagiarism constitutes software infringement, follow the determination method of “contact + substantial similarity - other sources”. The Plaintiff should first prove that the Defendant had access to the Plaintiff’s software and that the alleged infringing software was substantially similar to the Plaintiff’s software. Regarding access, generally include the following facts: the rights of the software development or first published earlier than the infringing software, the Defendant has access to the rights of the software source code. Generally speaking, only access to the target program is not regarded as “access” in the sense of software infringement; regarding the proof of substantial similarity, first of all, the Plaintiff shall submit prima facie evidence to prove that the target programs of the accused infringing software and the software with copyright are highly similar in terms of operation interface, operation parameters, database structure, etc., and that the factors of being in the public domain and limited expression must be excluded. Since the copyright law protects presentation rather than ideas, the similarity of the functional settings of the software is not equivalent to the substantial similarity of the software. Based on the Plaintiff’s initial burden of proof, the court may require both parties to submit the software’s source code for comparison.
Case 6: Dispute over computer software copyright infringement between a Nanjing technology company and a Beijing technology company
Brief Summary of the Case: the Plaintiff, a technology company in Nanjing, claimed that a video capture driver software, built-in firmware program and supporting applications enjoy copyright according to law, the Defendant used to be the Plaintiff’s seller, the two sides had signed a contract agreed that the Defendant shall not infringed the Plaintiff’s products, drivers, software, packaging and so on any piracy or copyright, but the Plaintiff found that the Defendant manufactured and sold video capture cards containing the preceding software without authorization, providing users with video capture driver software, built-in firmware programs, and supporting application software. Defendant argued that it had no intent to infringe that the Plaintiff provided the sale of the relevant products based on its previous cooperation and that it did not result in actual sales. In addition, the Plaintiff offered free downloads of the software on its website, and the Defendant’s behavior did not constitute infringement.
The Beijing IP Court held that the operator when selling digital products through the e-commerce platform, burned the driver developed by others into a CD-ROM as the supporting software of its products to the buyers without permission, which infringed on the reproduction and distribution rights of the computer software copyright enjoyed by the copyright owner for the driver. The fact that the copyright owner provided the driver for free on its website for the convenience of the users who purchased the hardware does not mean that it allowed others to make use of it for free in any form, including the fact that it could not be assumed that the copyright owner permitted the subject who downloaded the said software to make copies of it to make a profit and sell it.
Judge’s Note: Digital products often require supporting drivers, firmware, and other software to run independently or be installed on different hardware. Such software independently developed by the developer belongs to a category of works protected by the Copyright Law and the Regulations for the Protection of Computer Software, and the developer enjoys copyright and has the right to prohibit others from unauthorized copying, distribution, and so on. Drivers or firmware developed by one manufacturer may be compatible with similar digital products produced by multiple manufacturers. Still, other manufacturers can only directly make copies of the said software and provide them to purchasers of their products with authorization. When a software holder offers free downloads of such software on its product or company website, it is usually a license for others to download the software and install it on the products sold by the right holder. Other product producers and sellers should not mistakenly believe that the right holder has licensed the reproduction or distribution of the software for other purposes to unspecified third parties.
As the foundation of the development of the digital economy, the importance of the computer software industry is self-evident, and the protection of its industry’s healthy and orderly development is the proper meaning and essential content of the intellectual property protection work. In the next step, the Beijing IP Court will continue to explore the trial mode and adjudication method that conforms to the characteristics of the computer software industry, enhances the level of judicial protection, and escorts the high-quality development of the software industry.