Collection of evidence in software copyright infringement cases

By Wang Yadong and Li Min, Run Ming Law Office
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For computer software copyright holders, substantiating the facts in a civil action involving an infringement dispute is a crucial stage. There are several ways in which evidence may be collected.

Obtaining of evidence

The evidence that a rights holder submits to the court in a legal action includes evidence of title, evidence of the infringement and evidence of the damage. The first paragraph of Article 8 of the Supreme People’s Court

Wang Yadong
Executive partner
Run Ming Law Office

Interpretations on Several Issues Concerning the Application of the Law to Trials of Civil Dispute Cases Involving Copyright (Interpretations) states that physical goods, invoices and other items that a copyright holder secures through the purchase of infringing reproductions, whether by means of an order, an onsite transaction or otherwise, may serve as evidence.

However, as the evidence that needs to be collected and preserved in computer software infringement cases is highly technical and specialized, easy to conceal, private, easily lost and easily modified, it is difficult for a rights holder smoothly and accurately to secure complete and pertinent evidence himself. Furthermore, even if a rights holder succeeds in himself securing such evidence, it is unlikely to be used by a court as a direct basis for determining the facts due to limitations on the evidentiary force of self-secured evidence.

Notarized evidence credible

Article 67 of the PRC Civil Procedure Law specifies that “a People’s Court shall use legal acts, legal facts and documents notarized according to statutory procedure as the basis for its determination of the facts, unless there is counter evidence sufficient to overturn the notarized proof”. The second paragraph of Article 8 of the Interpretations specifies that where a

Li Min
Run Ming Law Office

notary public has not disclosed his identity to an alleged infringer, the evidence secured by the rights holder in accordance with the first paragraph of that Article and the notarial deed truthfully issued in respect of the evidence-gathering process shall serve as evidence, unless there is evidence to the contrary. From this it can be seen that notarized evidence has the credibility and probative force that makes it directly acceptable to a court.

In practice, a rights holder may secure evidence of infringement by the notarized evidence gathering method, and have the process by which the evidence of infringement was secured notarized. The rights holder may invite a notary public, who will not disclose his identity to the alleged infringer, to purchase with him the infringing software and request the installation and operation of the infringing software, and have the notary public substantiate the purchase, installation and operation of the infringing software and the evidence gathered in the process by means of a notarial deed. Additionally, the rights holder may ask the notary public to preserve the medium (e.g. the computer, mobile equipment, e-mail address, relevant web page or operating page) that stores or displays the operation of the software and its data.

In its final judgment in a computer software copyright infringement dispute involving Peking University Founder Group as the plaintiff, the Supreme People’s Court expressly recognized the probative force of the notarized evidence gathering method taken by Founder in order to substantiate the facts of the infringement and the evidence so obtained.

However, when the notarized gathering of evidence is employed, the notary must take care to behave in a manner acceptable to the courts.

Moreover, there are also limitations to the notarized gathering of evidence which make it unable completely to satisfy the requirements in respect of securing evidence of software infringement. For example, a notary office, which, in accordance with the law, only has verification authority and no investigatory authority, may not search and seize the domicile and property of an alleged infringer.

As there are no operational rules or uniform standards for notarization activities conducted for the purposes of gathering evidence of software infringement, the act of gathering evidence itself could constitute a tort against another. In addition, lack of consistency in the method of operation of different notary offices could affect the credibility and probative force of notarized evidence.

Authorities collect evidence

A rights holder may lodge a complaint or file a report with the relevant administrative law enforcement authority, and the evidence that the administrative law enforcement authority collects or the decisions that it renders in the course of investigating and handling the copyright infringement may also be provided by the rights holder to a court to serve as evidence in determining the facts of infringement in a software copyright infringement case.

Applying to a court

Pursuant to Article 74 of the Civil Procedure Law, where evidence might be lost or become difficult to secure in future, a participant in legal action may apply to the People’s Court for preservation of evidence. The application, and the measures the court takes, can be crucial to determining victory.

According to Article 24 of the Supreme People’s Court Evidence in Civil Procedures Several Regulations, a court may take such measures as placement under seal, seizure, photography, making audio or video recordings, copying, expert assessment, onsite investigation and the making of written records.

Applications for evidence preservation in software copyright disputes tend to involve: (1) reproducing the allegedly infringing programs and technical information on data storage devices, which may serve as evidence of the infringement; and (2) reproducing or seizing financial accounts or statements and contracts that relate the quantities of allegedly infringing products, amounts and profits, which may serve as evidence.

When a rights holder applies to a court for the preservation of evidence, he is required to submit a written application and provide such security as is required by the court.

In summary, in gathering evidence, attention needs to be paid to the lawfulness of the means used to gather the evidence, the objectivity of the evidence, and the links and consistency between the different pieces of evidence.

Wang Yadong is executive partner at Run Ming Law Office.

Li Min is a partner at Run Ming Law Office.

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