Introduction

Research and development of computer software is a “knowledge-labor intensive” industry with high development costs. Conversely, copying software is relatively simple; this ease of duplication not only facilitates the widespread dissemination and use of software but also makes infringement highly likely to occur. The infringement determination for computer software copyright generally follows the rule of “substantial similarity + access + exclusion of reasonable explanation.” Substantial similarity is primarily determined by comparing the source code or object code of the parties. However, in judicial practice, defendants often refuse to provide source code or object code, and due to technical limitations or other reasons, it may be impossible to obtain the object code. This creates significant difficulties and controversies in infringement determination. This article studies how to address this issue.

Table of Contents

I. Scope of Protection for Computer Software Copyright

II. Types of Acts Infringing Computer Software Copyright

III. Basic Rules for Determining Computer Software Infringement

(1) Substantial Similarity

(2) Access

(3) Reasonable Explanation

IV. Burden of Proof, Spoliation of Evidence, and Factual Presumption in Computer Software Infringement Litigation

(1) Order to Produce Evidence

(2) Spoliation of Evidence and Factual Presumption

01

Scope of Protection for Computer Software Copyright

According to Articles 2 and 3 of the Regulations on the Protection of Computer Software, computer software refers to computer programs and their related documentation. Computer program means a coded instruction sequence that can be executed by a computer or other device with information processing capabilities to achieve a certain result, or a symbolic instruction sequence or symbolic statement sequence that can be automatically converted into a coded instruction sequence. Documentation refers to written materials and charts used to describe the content, composition, design, functional specifications, development status, test results, and usage methods of the program, such as program design specifications, flowcharts, and user manuals.

Computer software has two forms of expression: source code and object code. Articles 2.4 and 2.5 of the Specifications for Software Similarity Identification stipulate that source code refers to human-readable computer instruction language instructions written according to specific programming language specifications before compilation. Object code refers to a set of machine codes generated by a compiler or assembler after processing source code, which can be directly executed by a computer.

In disputes over infringement of computer software copyright, determining whether the defendant has infringed first requires establishing the scope of protection of the rights holder’s computer software copyright. First, according to the idea-expression dichotomy, copyright protects only the expression of ideas, not the ideas themselves. Article 6 of the Regulations on the Protection of Computer Software stipulates that protection of software copyright does not extend to the ideas, processing procedures, operating methods, or mathematical concepts used in developing the software. Second, copyright protects only the expression that represents the author’s original intellectual labor in the work, not expression that comes from the public domain, plagiarizes or copies another’s work, or lacks originality.

Therefore, whether a computer software copyright has been infringed depends on whether the defendant has used the original expression protected by the rights holder’s copyright.

02

Types of Acts Infringing Computer Software Copyright

Based on the different characteristics of the alleged infringing acts, Chapter 11 of the Beijing Higher People’s Court Trial Guidelines on Copyright Infringement Cases (hereinafter “Beijing High Court Copyright Trial Guidelines”) categorizes common situations of infringement of computer software copyright into: mere dissemination type, end-user type, plagiarism type, circumvention of technical measures type, rental type, and other types.

(1) Mere Dissemination Type: The defendant does not alter the content of the plaintiff’s computer software but provides the computer software to the public through reproduction, distribution, information network dissemination, or other means.

(2) End-User Type: The defendant does not alter the content of the plaintiff’s computer software but uses the computer software as an end-user in commercial activities.

(3) Plagiarism Type: The defendant reproduces, modifies, or adapts the content of the plaintiff’s computer software and provides it to the public as computer software developed by the defendant.

(4) Circumvention of Technical Measures Type: The defendant intentionally circumvents or destroys technical measures taken by the copyright owner to protect their computer software.

(5) Rental Type: The defendant temporarily licenses another person to use the computer software for a fee, unless the computer software is not the main subject of the rental.

(6) Other acts infringing computer software copyright.

In mere dissemination and end-user type cases, since the defendant has not altered the content of the plaintiff’s computer software, comparison of software source code or object code is generally not involved. The trial focus in plagiarism type cases is typically on comparing the similarity of the plaintiff’s and defendant’s software, and the applicable infringement determination rules are more complex. This article will focus on these types below. It briefly addresses how judicial practice handles the comparison issue in mere dissemination and end-user cases where the infringement facts are relatively clear.

In cases such as (2020) Supreme People’s Court (SPC) Zhi Min Zhong No. 609 and (2021) SPC Zhi Min Zhong No. 1271, because the defendant merely disseminated the rights holder’s computer software, the Supreme People’s Court did not compare the software code and directly found that the defendant had committed copyright infringement. In the series of disputes involving Game Paradise Electronic Technology (Beijing) Co., Ltd. suing internet cafes for infringing game computer software copyright, courts across various regions did not conduct software code comparisons.[1] For instance, in case (2013) Su Zhi Min Zhong No. 0056, the defendant Xinyeyuan Internet Cafe argued that without a source code comparison appraisal, the alleged infringing game software could not be determined to be the same as the game software claimed by Game Paradise. The court held that among the numerous computer software products, the public has relatively greater exposure to and familiarity with game software. The game “Romance of the Three Kingdoms” involved in the case is one of the series, well-known to the public who enjoy such single-player games. Under normal circumstances, there would not be a game named “Romance of the Three Kingdoms” with different content available on the market. According to the notarization content, the game interface appearing on the computers at Xinyeyuan Internet Cafe included the name of the game, the rights holder’s information, and the game operation steps. In the absence of contrary evidence, it could be determined that the game was “Romance of the Three Kingdoms.”

In cases such as (2019) SPC Zhi Min Zhong No. 314, 520, 953 and (2021) SPC Zhi Min Zhong No. 413, 1933, because the defendant was an end-user of the computer software, the court also did not compare the software code. For example, in case (2020) SPC Zhi Min Zhong No. 155, Siemens Industry Software Co., Ltd. v. Guangzhou Wofu Mold Co., Ltd., a dispute over infringement of computer software copyright, the defendant argued that without a source code comparison procedure, it could not be determined that the alleged infringing software infringed Siemens Software’s copyright. In response, the Supreme People’s Court held that during the evidence preservation process in the first instance, it had already been ascertained that the alleged infringing software was highly similar to the plaintiff’s software, including having the same name, version number, and copyright owner information. This could preliminarily establish that Wofu had reproduced the software subject to Siemens Software’s copyright. At that point, Wofu should have provided corresponding rebuttal evidence to overturn this finding. However, Wofu did not provide evidence that it had purchased the software in question, nor did it provide evidence or a reasonable explanation regarding the differences between the installed alleged infringing software and the software subject to Siemens Software’s copyright. Under these circumstances, comparing the source code was unnecessary.

03

Basic Rules for Determining Computer Software Infringement

“Substantial similarity + access + exclusion of reasonable explanation” is the universally applicable rule for determining computer software infringement. That is, when the plaintiff’s and defendant’s computer software are identical or substantially similar, and the defendant had the conditions to access the plaintiff’s software, if the defendant cannot provide a reasonable explanation, it should be determined that the defendant has committed infringement and bears corresponding liability for compensation.[2]

(1) Substantial Similarity

Software similarity comparison typically uses the following methods:

1. Comparison of Software Source Code: This is the most direct and convincing method of infringement comparison. However, in judicial practice, defendants rarely voluntarily submit source code for comparison. Direct source code comparison is only an ideal state and is difficult to implement in practice.

2. Comparison of Software Object Code: Article 3 of the Regulations on the Protection of Computer Software provides that the source code and object code of the same computer program are the same work. Since it is extremely rare to directly obtain the defendant’s source code during litigation, or even if source code is obtained, the parties may use different programming languages (e.g., C language vs. assembly language), making direct source code comparison impossible. The defendant’s object code can generally be read directly from the defendant’s computer or other hardware preserved as evidence. Therefore, comparing the object codes of the parties is an important method for software infringement comparison.

3. Comparison of Software Storage Medium Content, Installation Process, Installation Directory, and Operation Status: This generally includes comparing the content of CDs storing the plaintiff’s and defendant’s software, such as directories, number of files, names, and file sizes; comparing screen displays during the installation process of the plaintiff’s and defendant’s software, such as prompt messages, installation procedures, and overall interface design style; comparing directories and files after installation, such as folder and file names, file sizes, creation or modification times, and file attribute information; and comparing the operation status after installation, such as overall interface design style, menu functions, operation prompts, and help information. Generally, the higher the degree of similarity in these items, the higher the likelihood that the software is substantially similar.

4. Comparison of Characteristic Defects (Design Defects): Characteristic defects refer to unique defects specific to a particular software that are not universal. Such defects typically arise from oversights during the software design process. Their manifestation is that the software enters an abnormal state outside the original design scope under specific conditions during operation. The occurrence of such defects is highly coincidental; the probability of different software having the same characteristic defect exists only theoretically and is practically impossible. In judicial practice, the defendant often does not voluntarily provide software source code or object code, and sometimes, due to encryption by the defendant or limitations of existing technology, it may be impossible to read the defendant’s software object code from the defendant’s computer or hardware. In such cases, comparing characteristic defects between the plaintiff’s and defendant’s software can be considered. If identical characteristic defects exist, and the defendant refuses without正当理由 to provide source code or object code, considering the objective difficulties of the plaintiff’s proof in such cases, it should be reasonably presumed that the plaintiff’s and defendant’s software are substantially similar, with the defendant bearing the consequences of losing the case.[3]

(2) Access

Access refers to the defendant having had a prior opportunity to study, develop, modify, or copy the plaintiff’s software. It is generally established through: (1) Direct Establishment: For example, the defendant previously worked for the plaintiff or acted as a distributor for its software, thus having the opportunity to access the plaintiff’s software. (2) Indirect Presumption: For example, if the plaintiff’s software was publicly published and predates the defendant’s product, and the defendant cannot provide rebuttal evidence proving it had no opportunity to access the plaintiff’s software, access is generally presumed.

(3) Reasonable Explanation

Reasonable explanations for the defendant’s defense generally include the following circumstances:

1. The defendant can prove that the software was developed independently.

2. The defendant’s software has a legitimate source.

3. Limited Expression Defense: Article 29 of the Regulations on the Protection of Computer Software provides that if software developed by a developer is similar to existing software due to the limited number of available expressions, it does not constitute infringement of the copyright in the existing software.

4. Fair Use Defense: Article 17 of the Regulations on the Protection of Computer Software provides that using software by installing, displaying, transmitting, or storing it for the purposes of studying and researching the design ideas and principles contained therein may be done without permission from or payment to the software copyright owner.

5. Reverse Engineering Defense: Reverse engineering, also known as decompilation, involves obtaining source code from object code, typically through two methods: one is to reverse-engineer the corresponding source code by analyzing the software’s object code; the other is the so-called “black box” method, which does not involve accessing the program code but directly analyzes input-output results based on the program’s functions to deduce the design ideas and structure of the software program.[4]

04

Burden of Proof, Spoliation of Evidence, and Factual Presumption in Computer Software Infringement Litigation

Article 67 of the Civil Procedure Law provides that parties have the responsibility to provide evidence for their claims. “He who asserts must prove” is the fundamental principle of burden of proof in civil litigation. The rights holder should submit the source code and object code of their software and the source code and object code of the alleged infringing software to prove that the defendant copied their software. However, in practice, it often happens that the rights holder cannot obtain the source code of the alleged infringing software, or even due to technical limitations, cannot read the object code from the allegedly infringing product, making it impossible for the rights holder to fulfill their burden of proof. How can the rights holder break this deadlock?

(1) Order to Produce Evidence

To address the “difficulty of proof” faced by intellectual property rights holders, Article 2 of the Supreme People’s Court’s Several Provisions on Evidence in Intellectual Property Civil Litigation (hereinafter “IP Evidence Provisions”) stipulates that, based on the circumstances of the case, the people’s court may, in accordance with Article 65(2) of the Civil Procedure Law, require a party to provide relevant evidence based on the party’s claims and facts to be proven, the evidence held by the party, and the party’s ability to present evidence. This provision concerns the court’s authority to require a relevant party to assume the obligation of proof, aiming to strengthen the evidentiary obligations of the party in possession of evidence, encourage all parties to actively present evidence, prevent the party holding evidence from deliberately withholding it for gain, and ensure the court accurately ascertains the facts and renders a correct judgment.[5]

Article 24 of the IP Evidence Provisions stipulates the circumstances under which the court may issue an order to produce evidence upon a party’s application. If the party bearing the burden of proof files a written application requesting the court to order the opposing party, who controls the evidence, to submit it, and the application is well-founded, the people’s court shall render a ruling ordering its submission.

(2) Spoliation of Evidence and Factual Presumption

Article 95 of the Supreme People’s Court’s Several Provisions on Evidence in Civil Litigation (hereinafter “Civil Evidence Provisions”) provides that if a party controls evidence and refuses to submit it without正当理由, and the party bearing the burden of proof for the fact to be proven asserts that the content of the evidence is unfavorable to the controlling party, the people’s court may deem that assertion to be established.

Article 25 of the IP Evidence Provisions further stipulates that if a party, when required by the people’s court to submit relevant evidence according to law, refuses to submit it without正当理由, submits false evidence, destroys evidence, or engages in other acts rendering the evidence unusable, the people’s court may presume that the opposing party’s claim regarding the matter to be proven by that evidence is established.

Additionally, Article 11.8 of the Beijing High Court Copyright Trial Guidelines stipulates that if the defendant refuses to provide the source code of the alleged infringing computer software, and the plaintiff can prove that the object codes of the two are identical or similar, or, although not identical or similar, the object code of the alleged infringing software contains unique content of the plaintiff’s copyrighted software, or the software outcomes (including software interface, operating parameters, database structure, etc.) are identical or substantially similar, it may be determined that the plaintiff’s and defendant’s software constitutes substantial similarity.

It is worth noting that a party’s conduct obstructing litigation or lacking good faith may not only lead to adverse factual presumptions but may also result in coercive measures for obstructing civil litigation under Article 114 of the Civil Procedure Law. If the circumstances are serious enough to constitute a crime, criminal liability may also be pursued.

In summary, in cases where the source code and object code of the alleged infringing software cannot be obtained due to objective reasons, first, the rights holder must fulfill their burden of proof by presenting evidence that the alleged infringing software is similar to their software in terms of operational interface, operational results, data structures used, or that the two software share identical names, directories, file names, rights management information, design defects, redundant designs, other unique information, etc., indicating a relationship between the two software. Second, after the rights holder completes this initial burden of proof, the court, according to the Civil Evidence Provisions and IP Evidence Provisions, allocates and shifts the burden of proof. The alleged infringer must then provide contrary evidence to prove they did not commit the infringing act. If they refuse without正当理由 to provide their software’s source code or object code for direct comparison, this constitutes spoliation of evidence. According to Article 95 of the Civil Evidence Provisions and Article 25 of the IP Evidence Provisions, the court will presume that the two software programs are substantially similar.

In judicial practice, the above rules regarding burden of proof, spoliation of evidence, and factual presumption are applied in numerous software copyright cases. This article selects ten typical cases for the reader’s reference.

05

Ten Judicial Cases

(1) Supreme People’s Court Guiding Case No. 49: Shi Honglin v. Taizhou Huaren Electronic Information Co., Ltd. - Dispute over Computer Software Copyright Infringement [(2007) Su Min San Zhong Zi No. 0018]

The adjudication points confirmed in Guiding Case No. 49 are: In a situation where the defendant refuses to provide the source code or object code of the allegedly infringing software, and due to technical limitations, the object code cannot be directly read from the allegedly infringing product, if the plaintiff’s and defendant’s software are essentially identical in design defects, and the defendant refuses without正当理由 to provide its software source code or object code for direct comparison, then, considering the objective difficulty of the plaintiff’s proof, it can be determined that the plaintiff’s and defendant’s computer software constitute substantial similarity, and the defendant shall bear tort liability.

Due to objective difficulties, the plaintiff, Shi Honglin, was practically unable to provide the source code or object code of the allegedly infringing HR-Z software. Using existing technical means, it was impossible to obtain the HR-Z software source code or object code from the HR-Z controller. The court found that the plaintiff’s software and the allegedly infringing software shared identical software defects and operational characteristics; their user manuals, descriptions of controller functions, and technical specifications were essentially the same; and the overall appearance and layout of the two controllers were essentially identical. The existing evidence provided by Shi Honglin could form a preponderance of high probability, sufficient to convince the court that the plaintiff’s and defendant’s software were substantially similar. Since Shi Honglin had provided the above evidence to support his claims, and Huaren Company failed to provide contrary evidence to rebut it, Huaren Company should bear the adverse consequences of failing to meet its burden of proof. After multiple clarifications by the appellate court, Huaren Company persistently refused to provide the source code of the allegedly infringing software for comparison.

In conclusion, based on the existing evidence, and given that Huaren Company held the source code of the allegedly infringing software and refused without正当理由 to provide it, the allegedly infringing software should be deemed to constitute substantial similarity with Shi Honglin’s S-series software, and Huaren Company infringed Shi Honglin’s copyright in the S-series software.

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(2) 100 Typical Cases of Intellectual Property Judicial Protection: Fuzhou Waixing Computer Technology Co., Ltd. v. Weng Zhengwen, Ye Xiujuan, Fuzhou Huanqiu Electric Appliance Firm, Urumqi Lijun Firm, Wang Xiaoyan - Dispute over Computer Software Copyright Infringement [(2000) Zhi Zhong Zi No. 4]

Regarding the comparison of game software, when the defendant did not provide source code or object code, the Supreme People’s Court held that the main purpose of game software is entertainment, and its external perception is mainly realized through scenes, characters, sounds, and sound effects that change during the game. These changing scenes, characters, and sounds are the primary purpose of game software program design, specifically implemented through program code. Therefore, whether the computer program codes of game software are identical can be relatively clearly and intuitively reflected through their external perception. Although technically, game software with the same functions, including external perception, can be realized through different computer programs, given the characteristics of game software, the probability of two independently developed computer game software having identical scenes, characters, sounds, etc., is almost non-existent. Even if deliberately imitated, achieving identical external perception is technically difficult.

Therefore, considering comprehensively that the external perceptions (scenes, characters, sounds, etc.) of the parties’ game software were identical, and their manuals and other documentation were essentially identical, and that the defendant could not provide a reasonable explanation for the various similarities in external perception, manuals, and object codes between the two software, the court ultimately found that the defendant’s software infringed the plaintiff’s copyright.

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(3) Synopsys Technology Co., Ltd. v. Wuhan XinDong Technology Co., Ltd. - Dispute over Computer Software Copyright Infringement [(2020) SPC Zhi Min Zhong No. 1138]

The Supreme People’s Court held that determining whether software is identical or substantially similar requires both diligent efforts to ascertain objective facts and full consideration of the parties’ ability to present evidence, with differentiated treatment based on the specific circumstances of each case. Source code comparison should not be considered the sole standard for determining software identity or substantial similarity. If the rights holder has adduced evidence proving that the alleged infringing software is highly similar in interface to the copyrighted software, or that the alleged infringing software contains identical unique information such as rights management information, design defects, redundant designs, etc., it can be considered that the rights holder has fulfilled the initial burden of proof. At this point, the burden of proof shifts to the alleged infringer, who should provide contrary evidence to prove that they did not commit the infringement.

In this case, Synopsys applied to the first-instance court for pre-litigation evidence preservation and used command probe methods to check the usage status of XinDong’s computers and servers. According to the preservation results, XinDong’s computers contained software information identical to Synopsys’s copyrighted software in terms of name, directory structure, error messages, etc., indicating a possibility that XinDong had infringed Synopsys’s computer software copyright.

Although XinDong denied using Synopsys’s software, it failed to provide a reasonable explanation during both the first and second instances regarding the copyright owner of the computer software identified in the command probe being marked as Synopsys. Furthermore, during the second-instance trial, XinDong argued that it did not use the software in question but used other software for related chip design. However, it did not submit conclusive evidence of its actual installation and use of other software. Additionally, although XinDong claimed during both instances that the relevant environment variables containing the software on its computers were set according to upstream and downstream needs, it never submitted supporting evidence. Therefore, the court did not accept this defense and similarly found no need for source code comparison. Moreover, XinDong failed to provide a reasonable explanation for its job recruitment requirements for candidates’ familiarity with Synopsys’s software, which further supported the possibility that XinDong used the software in question.

Therefore, based on the existing evidence and ascertained facts, XinDong committed infringement of Synopsys’s copyright in the software in question.

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(4) Beijing Junyi Oriental Electrophoresis Equipment Co., Ltd. v. Beijing Dongfang Ruili Technology Co., Ltd. - Dispute over Computer Software Copyright Infringement [(2020) SPC Zhi Min Zhong No. 209]

The Supreme People’s Court held that in disputes over computer software copyright infringement, source code comparison is neither a mandatory condition nor a necessary step for determining whether the alleged infringing software infringes the copyright of the rights-holding software. The infringement determination for computer software copyright should still follow the standard of “access plus substantial similarity.” According to the principle of “he who asserts must prove,” the plaintiff initiating the infringement lawsuit should first bear the burden of proving access plus substantial similarity. When the plaintiff has submitted evidence that can preliminarily establish infringement, if the defendant does not submit contrary evidence or the submitted contrary evidence is insufficient to overturn the infringement finding, the defendant should bear corresponding tort liability.

In this case, for the rights holder, Junyi Oriental Company, it was difficult to obtain the source code of the alleged infringing software. Having proven that Dongfang Ruili Company had the possibility of accessing the software in question and that the visual content of the two software programs was identical, particularly that they shared identical display errors, Junyi Oriental Company had satisfied its initial burden of proof to the extent of its capacity. At this point, if the alleged infringer, Dongfang Ruili Company, believed it did not constitute infringement, it should have provided contrary evidence to support its claim. The first-instance court, by dismissing Junyi Oriental Company’s claims on the grounds that it had not submitted sufficient evidence showing substantial similarity of the source codes because Dongfang Ruili Company did not submit the alleged infringing software’s source code, improperly allocated the burden of proof.

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(5) Beijing XinNuoRuiDe Software Systems Co., Ltd. v. Beijing ZhiHengWangAn Technology Co., Ltd. - Dispute over Computer Software Copyright Infringement [(2021) SPC Zhi Min Zhong No. 1269]

From the evidence on record, it was apparent that the alleged infringing software contained information identical or highly similar to the rights-holding software in aspects such as the core program structure and configuration, free naming, development tools, error messages, redundant designs, and performance test results. Notably, regarding the creative parts of the software, the alleged infringing software directly used former names and erroneous names of the rights-holding software. Although ZhiHengWangAn Company denied using the rights-holding software, it failed to provide a reasonable explanation for these unreasonable similarities or submit contrary evidence to prove it did not commit the infringement. Therefore, the first-instance court’s finding that the alleged infringing software and the rights-holding software constituted substantial similarity was legally sound.

Given that XinNuoRuiDe Company had proven that ZhiHengWangAn Company had the possibility of accessing the rights-holding software, that the two software programs were substantially similar, and that ZhiHengWangAn Company did not submit rebuttal evidence to the contrary, the first-instance court’s determination that ZhiHengWangAn Company infringed XinNuoRuiDe Company’s copyright in the rights-holding software was not improper.

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(6) Beijing Longruan Technology Co., Ltd. v. Beijing Yuantu Smart Technology Co., Ltd., Liu Qiaoxi, Lu Bentao, et al. - Dispute over Computer Software Copyright Infringement [(2020) SPC Zhi Min Zhong No. 1639]

Regarding the determination of computer software infringement, generally, even if competing software produces similar functional operation interfaces, option and parameter selection settings, and identical database information during operation, this does not definitively and conclusively presume that the later software copied the earlier software. However, the particularity of this case is that the shareholders/employees of Yuantu Company were participants in the research and development of Longruan Company’s rights-holding software and had direct access to and knowledge of the source code of the rights-holding software. Under such circumstances, it is difficult to consider it reasonable for the alleged infringing software to share identical aspects with the rights-holding software in functional operation interfaces, option and parameter selection settings, database information, specific data import functions, and even design defects. Yuantu Company needed to submit rebuttal evidence to prove that the alleged infringing software was independently developed by it.

Now, because Yuantu Company explicitly stated that it could not provide the alleged infringing software’s source code due to its server hard drive being damaged and failed to submit other evidence of independent development of the alleged infringing software, Yuantu Company must bear the adverse legal consequences of failing to meet its burden of proof. It should be determined that the alleged infringing software and the rights-holding software constitute substantial similarity and constitute infringement.

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(7) Dongguan Shengding Precision Instrument Co., Ltd. v. Dongguan Pusaite Testing Equipment Co., Ltd., Zeng Xiaolian - Dispute over Computer Software Copyright Infringement [(2021) SPC Zhi Min Zhong No. 1210]

Upon in-court comparison in the first instance, the alleged infringing software and the software in question were identical in terms of the overall layout of the operational interface, composition ratio, background color, font size, distribution of functional modules, button settings, drop-down menu settings, operation methods, and four algorithms. The two software were extremely similar in program organization structure, processing flow, data structure adopted, output method generated, and input form required. The administrator password was the pinyin of “晟鼎” (Shengding), with only minor differences in the application icon and copyright information. In the absence of Pusaite Company submitting the alleged infringing software’s source code to prove independent development, it could be determined that the alleged infringing software was copied from the software in question.

Pusaite Company appealed, arguing that source code comparison should be used to determine whether the alleged infringing software and the software in question were identical. In response, the Supreme People’s Court held that Pusaite Company used the alleged infringing software on the products it sold but could not provide its source code for comparison with the source code of the software in question submitted by Shengding Company. Therefore, this case could not conduct an infringement comparison based on whether the source codes were identical or substantially similar. The first-instance court reasonably allocated the burden of proof according to evidentiary rules and, based on the visual content such as the operational interfaces and results of the two software, found them to constitute substantial similarity. The Supreme People’s Court affirmed this ruling.

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(8) Taizhou Langjin Sewing Machine Electronics Co., Ltd. v. Zhejiang Nanbang Technology Co., Ltd., Yiwu Huafu Sewing Machine Parts Firm - Dispute over Computer Software Copyright Infringement [(2021) SPC Zhi Min Zhong No. 890]

First, because the source code and object code of the alleged infringing software were in the possession of Nanbang Company, Langjin Company could not directly obtain them. Second, the first-instance court organized an on-site inspection by both parties, but the object code could not be directly read from the alleged infringing equipment. In this regard, the first-instance court repeatedly clarified the situation to Nanbang Company, but Nanbang Company did not submit the source code or object code of the alleged infringing software for direct comparison and could not provide a reasonable explanation for this. Although Nanbang Company claimed the alleged infringing software was commissioned from a third party, it did not submit any evidence to support this claim.

The Supreme People’s Court held that by comparing the operational interface of the alleged infringing automatic elastic thread machine equipment with the operational interface displayed after running the software in question, the functional modules and their layout were essentially identical. Notably, the hidden door buttons and error messages displayed after running the alleged infringing software were also the same as those in the software in question. The existing evidence could prove a high likelihood that the alleged infringing software and the software in question were substantially similar. Given that Langjin Company had exhausted its efforts in presenting evidence, and Nanbang Company still refused to provide the source code or object code of the alleged infringing software, Nanbang Company should bear the adverse consequences of failing to meet its burden of proof, and it was determined that the alleged infringing software and the software in question constituted substantial similarity.

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(9) Qingdao Intellectual Property Court 2021 Ten Typical Cases of Judicial Protection of Intellectual Property: GOLFZON CO., LTD v. Weihai Changqing Golf Practice Range Co., Ltd. - Dispute over Computer Software Copyright Infringement [(2019) Lu 02 Zhi Min Chu No. 213]

During the evidence preservation of the allegedly infringing software by the Qingdao Intermediate People’s Court, the defendant engaged in conduct obstructing the evidence collection, resulting in an incomplete preservation of the software, which prevented source code comparison. The court ordered the defendant to submit the software’s source code and object code, as well as evidence of independent creation or authorized use, but the defendant failed to do so. By comparing the operational screen of the plaintiff’s software with the allegedly infringing software, multiple aspects such as scene settings and background music were found to be highly similar. The court held that the golf practice simulation software installed and used by the defendant at its business premises infringed the plaintiff’s copyright in the software in question.

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(10) Shanghai Ecopia Inkjet Technology Co., Ltd. v. Guangdong Keli Development Co., Ltd. - Dispute over Computer Software Copyright Infringement [(2012) Sui Zhong Fa Min San Zhong Zi No. 246]

In this case, because the object code of the allegedly infringing program was encrypted to prevent reading and cracking, existing equipment and technical means could not decrypt it to read the object code. Comparing the boot-up interfaces of the parties’ software showed that the displays after pressing the same letter key synchronously were essentially identical, and some arbitrary data, such as dates used for examples, were also the same. The content of the “High-Resolution Inkjet Printer Operation Manual” stored in both parties’ printer packaging boxes was also largely identical. That is, the two software were essentially identical in functionality and process.

Considering the parties’ respective capacities for proof and the consistency of the apparent phenomena between the rights-holding program and the allegedly infringing program, the Guangzhou Intermediate People’s Court held that Ecopia Company had initially fulfilled its burden of proof. Keli Company should bear the burden of providing the source code of the allegedly infringing program and proving that it was inconsistent with the source code of the rights-holding program. Keli Company failed to meet this burden and should bear the adverse consequences. Therefore, although a source code comparison appraisal could not be conducted in this case, it could still be presumed that the allegedly infringing program and the rights-holding program were identical or substantially similar. Combined with the fact established during trial that Keli Company had previously been a distributor of Ecopia Company’s products, it was evident that Keli Company had the conditions and possibility of accessing the rights-holding program. Considering these factors comprehensively, it was determined that Keli Company had infringed Ecopia Company’s computer software copyright.

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Notes

[1] Civil judgments such as (2013) Su Zhi Min Zhong Zi No. 0056, (2013) Lu Min San Zhong Zi No. 231, (2013) Hu Er Zhong Min Wu (Zhi) Zhong Zi No. 18, (2014) Yue Gao Fa Min San Zhong Zi No. 1072, (2014) E Min San Zhong Zi No. 00246, (2018) Jing Min Zhong Zi No. 131.

[2] Song Jian, Gu Tao. Discussion on Several Issues in the Determination of Computer Software Infringement [J]. People’s Judicature, 2014(13): 83-87.

[3] Gu Tao, Li Rong, Shi Lei. Understanding and Reference of “Shi Honglin v. Taizhou Huaren Electronic Information Co., Ltd. Computer Software Copyright Infringement Dispute Case” – Application of Comparison of Computer Software Design Defects in Infringement Determination [J]. People’s Judicature (Cases), 2016(26): 26-31.

[4] Sun Tiecheng. Computers and the Law [M]. Law Press, 1998: 164.

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Lawyer Profile

Tian Shuangli, Attorney

Attorney Tian Shuangli is a patent agent and intellectual property professional. She holds a Master of Laws in Intellectual Property Law from Xiamen University. She focuses on legal matters in the intellectual property field and related areas, having handled numerous copyright disputes, trademark disputes, patent infringement and invalidation disputes, and unfair competition disputes. She has provided intellectual property legal services to several well-known enterprises, including internet giants, gaming giants, and Fortune 500 companies. She also handles various civil and commercial cases and corporate legal advisory services, possessing extensive practical experience.