Liability of the holder of the hottest pirated sof

2022-08-22
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Compensation to be borne by the holder of pirated software

-- Guangdong Zhongshan intermediate people's court ruled that the cashier system of the supermarket operated by the holder of pirated software used the pirated software involved in the case of Zhang Wenqing and Zhang Mingjie v. Bi Zhiqiang's infringement of computer software copyright, which belongs to the end user of commercial use of pirated software, rather than the holder of bona fide software copies

facts of the case

on November 10, 2002, the plaintiff LG, SK and meimeimeike all purchased a 3-yuan material patent from 3m, authorized Zhang Wenqing and Zhang Mingjie to develop and complete the software named golden housekeeper business management information system (hereinafter referred to as golden housekeeper) v8.0, and obtained the computer software copyright registration certificate issued by the National Copyright Administration on October 21, 2003, with the registration number of 2003sr11296, and the copyrights are Zhang Mingjie and Zhang Wenqing, The way of obtaining rights is original acquisition, and the scope of Rights: All rights. Golden housekeeper, also known as "golden housekeeper (chain) management information system" and "golden housekeeper mall POS management system", is a commercial enterprise management software, which is mainly applicable to the purchase, shipment, allocation, inventory, finance and other management activities of department stores, convenience stores and specialty stores that generally operate retail business. The plaintiff admitted that its market price was 1500 yuan per set

in July 2004, the defendant Bi Zhiqiang entrusted Longcheng commercial firm (self-employed industrial and commercial household, registered operator is Li Wenzhen) to set up a "POS computer cashier system" for its Taifeng center, and installed the software called "POS management system of golden housekeeper mall" in 15 front and rear terminals in the mall. The defendant paid consideration for this. On September 8th, 2005, the plaintiff applied to Guangzhou Notary Office of Guangdong Province for notarization to preserve evidence. On December 26 of the same year, the notary of the notary office together with the plaintiff's agent purchased a set of Longcheng software from Longcheng firm located at shop A02, Daxin computer city, Xiaolan Town, Zhongshan City (one CD and one software user manual are attached), and took photos and sealed the relevant evidence. On September 16, 2007, the plaintiff obtained a small ticket, a receipt and a shopping bag by shopping at the defendant, and entrusted Guangzhou Weisi Software Co., Ltd. to identify the similarities and differences between the cashier computer software of Taifeng center and the golden housekeeper software. The conclusion was that the operation, interface, format, description, arrangement, sales of small tickets and other software details of the two reflected the same. The plaintiff claimed that what Longcheng firm sold was pirated software of golden housekeeper software, and the defendant bought and used golden housekeeper software from Longcheng firm for business without its permission, which infringed its software copyright, so he filed a lawsuit with the court

in the lawsuit, the defendant confirmed that the suspected infringing golden housekeeper software interface installed on its shopping mall terminal was the same as the software interface claimed by the plaintiff, but believed that the same interface was not equal to infringement, and it could be considered infringement only if the source code was consistent

The intermediate people's Court of Zhongshan City, Guangdong Province held that the golden housekeeper software developed by the plaintiff belongs to the works protected by the copyright law of the people's Republic of China. After registration, the plaintiff obtained the "copyright registration certificate of computing software" issued by the relevant state departments, and enjoyed the copyright of golden housekeeper software according to law. The defendant also confirmed it, which the Court confirmed

there are two controversial focuses in this case: first, whether the defendant's behavior constitutes infringement? Second, if the defendant's behavior constitutes infringement, how should he bear civil liability

as for focus one, first of all, from the analysis of the existing evidence, the software used by the defendant to operate Taifeng center is called "POS management system of golden housekeeper mall", which is exactly the same as the name used in the plaintiff's software specification, and the defendant also confirmed in the trial that its operation interface of the suspected infringing software is the same as that of the plaintiff's software involved in the case. When the name, function and interface of the suspected infringing software are exactly the same as that of the plaintiff's software, the defendant challenges the consistency of the source code and defends against non infringement. At this time, the defendant should bear the corresponding proof, but the defendant can neither provide evidence to prove that the software it uses is different from the plaintiff's software source code, nor prove that the software it uses is legally authorized by the plaintiff. Therefore, the defendant should bear the consequences of failing to provide evidence, that is, the court found that the software used by the defendant was copied without the permission of the software copyright owner and was an infringing copy. Secondly, the defendant used golden housekeeper software to operate Taifeng center, which is obviously profitable and commercial. It does not belong to the "software replica holder" stipulated in Article 30 of the regulations on the protection of computer software, and should belong to the end-user who uses computer software commercially. Accordingly, the defendant should bear the civil liability of compensation for losses. The plaintiff told that it was reasonable to ask the defendant to compensate for the loss and supported it. The defendant's defense that he is an end consumer and the source of the software is legal and should not bear any defense is not tenable and will not be accepted

as for focus two, how should the defendant bear the compensation. The plaintiff claimed that the losses caused to the plaintiff by the defendant's infringement should be determined by multiplying the market sales price of its software (1500 yuan/set) by the number of terminals that the defendant copied and used its software (15 sets). As for the unit price of software, the plaintiff provided the market price certificate of genuine software (sales contract). Based on the analysis of the statements of the plaintiff and the defendant, the fees paid by the defendant to Longcheng firm for the installation of the software and the sales price of similar software in the market in the same period, the court believes that the plaintiff claims that 1500 yuan per set of software conforms to the objective law of the market and can be used as the benchmark for determining the price of a single set of software. As for the amount of plaintiff's software copied and used by the defendant, as both the plaintiff and the defendant confirmed the fact that the defendant copied the golden Housekeeper on 15 terminals for business purposes, the plaintiff's claim that the defendant should make compensation according to the standard of 1500 yuan/set multiplied by 15 has sufficient factual and legal basis, which should be supported. For the reasonable expenses paid by the plaintiff to stop the infringement, the plaintiff proved to the court that the industrial and commercial information inquiry fee of 60 yuan, as evidenced by the invoice issued by the industrial and commercial department, was a reasonable investigation and evidence collection fee, and the defendant should compensate it according to law

in conclusion, the defendant's commercial use of golden housekeeper software with copyright enjoyed by the plaintiff without the plaintiff's permission constitutes an infringement of the plaintiff's computer software copyright, and should bear civil compensation in accordance with the provisions of relevant laws. The plaintiff's claim is fully supported by the court, and the litigation costs of this case are fully borne by the defendant

in accordance with Article 47 (1) and Article 48 of the copyright law of the people's Republic of China, with reference to Article 21 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of civil disputes over copyright and Article 24, paragraph 1 (1), of the regulations on the protection of computer software, Judgment: the defendant shall compensate the plaintiff for the loss of 22500 yuan and bear the plaintiff's investigation and evidence collection expenses of 60 yuan within 10 days from the effective date of this judgment

after the sentencing, neither party appealed

analysis

this case belongs to a dispute over infringement of computer software copyright. The final determination of the defendant's infringement is based on the analysis of the following three aspects:

first, the plaintiff is the legal copyright subject of computer software. According to the "Regulations on the protection of computer software" issued by the State Council on December 20, 2001, China protects the exclusive owner of computer software by giving computer software copyright. For the object of computer software copyright, its extension can only be computer programs and related documents, and does not extend to the ideas, processing processes, operating methods or mathematical concepts used in the development of software. And the software must be independently developed by the developer and fixed on some tangible object. The plaintiff in this case obtained the "copyright registration certificate of computing software" issued by the software registration authority for golden housekeeper software, which can be used as a preliminary proof of the registration items. The plaintiff also provided the court with the physical CD-ROM of golden housekeeper software. Because the defendant failed to provide proof to the contrary, the court recognized the plaintiff as the copyright owner of golden housekeeper software according to the copyright law and the principle of ownership of copyright in the regulations on the protection of computer software

II. The software involved in the case used by the defendant is a copy of the infringing software. In this case, the defendant purchased golden housekeeper software from a third person. The name, operation interface and function of the software are completely consistent with those of the plaintiff. Technically speaking, the software name and interface are only the result of the program running, not the program itself. The same name and interface can be obtained through different programs. The defendant's software and the plaintiff's software are similar or the same in the running interface, which cannot represent that the source program or target program code of the two software are similar or the same. However, as the only intermediary for users to realize software functions, users can intuitively experience the module design, arrangement, color, sound and other elements of the software interface through their senses. These arrangements must reflect the originality of program developers. Although they can be implemented by different codes after 3 ~ 5rain, the possibility that the elements of the interface of two independently developed software are exactly the same is very small; Moreover, this is a commercial software. If you want to deliberately imitate it, users will feel exactly the same. Economically, it is neither in line with the principle of rational people, nor technically. Since the defendant did not apply for the identification of the similarity of the source codes of the two software, and could not make a reasonable explanation for the consistency of the interface, it was determined that the software used by the defendant was a copy of the plaintiff's software according to the principle of evidence advantage. As for whether the copy infringed, the defendant could not prove that the software copy it used was authorized by the plaintiff or had signed a license agreement with the plaintiff. Therefore, the defendant certainly did not belong to the owner of the legal copy of the software specified in Article 16 of the regulations on the protection of computer software. That is, the software used by the defendant belongs to pirated software

III. The law that the defendant should bear. The cashier system of the supermarket operated by the defendant used the pirated software involved in the case, which belongs to the end-user of commercial use of pirated software, rather than the holder of bona fide software copies. According to Article 21 of the interpretation of the Supreme People's Court on the application of law in the trial of civil disputes over copyright, if the recycled plastic granulator as the main processing machine will have a large customer group, computer software users who use computer software commercially without permission or beyond the scope of the license, in accordance with item (1) of Article 47 of the copyright law The provisions of item (1) of Article 24 of the regulations on the protection of computer software bear civil liability. The provisions of item (1) of Article 47 of the copyright law and item (1) of Article 24 of the regulations on the protection of computer software stipulate the law of illegal reproduction, that is, the infringer copied his work without the permission of the copyright owner, and bears civil liability to the obligee by means of stopping the infringement, eliminating the influence, making an apology, and compensating for losses. It can be seen that the judicial interpretation excludes the end-users who use pirated software commercially from the "copy holder of software" stipulated in Article 30 of the "Regulations on the protection of computer software", and regards it as an illegal copying act and investigates civil cases

in this case, the defendant used pirated software and admitted that he copied the software into 15 copies and installed them in the terminal of the mall for the purpose of operating the mall. His behavior is obviously profitable and belongs to the commercial use of pirated software, not the holder of software copies. The plaintiff claimed that the defendant copied and used

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