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China IP Magaziine

The Case of Dispute over Infringement upon the Copyright of “ShopNC” E-commerce System Computer Software

发布时间:2018-12-06
Case 19
The Case of Dispute over Infringement upon the Copyright of “ShopNC” E-commerce System Computer Software
Trial Docket: (2016) Zhe1081MinChu No. 3924 Appeal Docket: (2017) Zhe10MinZhong No. 1825
 
[Headnotes] Where the defendant refuses to provide the software source program for direct comparison without justifiable reason and the plaintiff can not directly prove its claim because of objective difficulties, there should be a reasonable determination of the proof standard from the perspective of fairness, honest and credibility, and an assumption may be made that the defendant reproduces (uses) the source code of the software copyright owner according to the principle of preponderant evidence.
 
Whether the source of computer software is open should be determined by the corresponding license selected by the copyright owner. There is no necessary link between the adoption of license agreement on sharing the open source software knowledge and the free use of computer software.
 
[Synopsis] Appellant (defendant in the original trial): Wenling Municipal Dacromet Coating Industry Co., Ltd. (Dacromet Company)
 
Appellee (plaintiff in the original trial): Tianjin Municipal Wangcheng Tianchuang Technology Co., Ltd. (Tianchuang Company), Tianjin Municipal Wangcheng Technology Inc. (Wangcheng Company)
 
Defendant in the original trial: Zhejiang Shangbang Technology Co., Ltd. (Shangbang Company)
 
In March 2015, the defendant Dacromet Company and the defendant Shangbang Company signed the “Service Contract on Shangbang Technology Project Platform”. According to the contract, Shangbang Company shall, in addition to establishing a network platform in the name of Metal Mall and with “Jinshu.sc” as the domain name, for Dacromet Company, be responsible for the construction, development, maintenance and upgrade of the platform.
 
On March 30, 2016, Wang Haidong, the entrusted agent of Beijing Huatai Law Firm, used the computer of Beijing Guoli Public Notary Office to inquire about the information registration of the domain name “jinshu.sc”, and got relevant results after searching “ShopNC” in the source documents of several web pages of the website www.jinshu.sc. Guoli Public Notary Office issued a Notary Certificate (2016GuoLiNeiZhengZi No. 4960) for this process. Tianchuang Company and Wangcheng Company argued that the notary certificate’s contents respectively reflected the situations of the defendant’s Dacromet Company’s website, the plaintiff Tianchuang Company’s website, and other websites authorized by the plaintiff, and that the defendant Dacromet Company’s website involved in the case was similar to the pages of the website designed by its genuine software, that the information such as “ShopNC” could be found in the web pages and webpage source code of Dacromet Company’s website. Therefore, Tianchuang Company and Wangcheng Company brought an action against Dacromet Company and Shangbang Company in the Wenling Municipal People’s Court of Zhejiang Province, requesting a judgment to order the two defendants to bear legal liability such as stopping infringement and compensating for the losses according to law.
 
The Wenling Court ruled in its judgment of first instance that the defendant Shangbang Company conducted acts such as reproduction and use of the software involved in the case without plaintiff’s authorization, and that Shangbang Company shall immediately stop the infringement upon the plaintiff’s copyright to “ShopNC” e-commerce system computer software, uninstall the software from its computer system and pay 60,000 Yuan to the plaintiff as economic losses.
 
Shangbang Company refused to accept the judgment and filed an appeal with Taizhou Municipal Intermediate People’s Court of Zhejiang Province, which rejected the appeal and affirm the original judgment.
 
[Judge’s Comment] In this case, the court of first instance held that: (1) The holder of software’s copy does not know and has no reasonable reason to know that the software is an infringing copy and does not assume any liability for compensation, but should stop using or destroying the infringing copy. The defendant Dacromet Company’s business scope does not contain computer software and other related industries. It lacks professional knowledge in related fields, and has no actual control over the server and the software installation involved. When Shangbang Company provided the services such as website construction and server space supply, Dacromet Company had no reasonable reason to know that the software installed on the server of the website infringed upon others’ copyrights, so the defendant Dacromet Company may not be liable for compensation.
 
(2) During the trial, although the defendant Shangbang Company requested a comparison with the source code preserved by the plaintiff’s at the Copyright Protection Center of China, the code CD submitted by it for evaluation and comparison was not source code developed by Shangbang Company for Dacromet Company, making it impossible to evaluate and ascertain the disputed facts of the case. Meanwhile, Shangbang Company submitted no evidence to prove its argument that the software involved was open source software.
 
In summary, the court of first instance found that Shangbang Company conducted acts of reproducing and using the software involved without the plaintiff’s authorization.
 
The court of second instance ruled that the parties’ dispute in the case focused on whether the defendant of first instance reproduced (used) the source code of the “ShopNC” e-commerce system computer software of the plaintiff of the first instance and whether the ShopNC e-commerce system computer software developed by the appellee based on the PHP language was open source (free or even free to use) software.
 
In this regard, the court of second instance found that:
 
(1) In the trial of first instance, the evidences submitted by the two plaintiffs showed that the website pages involved were similar to the website pages designed by genuine software in terms of design, and the source files of the web pages on websites involved contained “ShopNC” in many places, to which Shangbang Company submitted no evidence to the contrary to rebut or given a reasonable explanation. The code CD submitted by Shangbang Company for evaluation and comparison had no effect as ruled by the court of first instance, making it impossible to ascertain the disputed facts of the case through evaluation. According to the principle of preponderant evidence, it should be assumed that Shangbang Company reproduced (used) the source code of the plaintiff of first instance.
 
(2) Although the PHP manual adopts the knowledge sharing license agreement and the software involved in the case is also written in PHP language, these facts has no necessary link with whether the software after being written is open (free or even free to use) or not. Whether software is open (free or even free to use) or not depends on the corresponding license for the software. The appellant in this case did not submit evidences to prove that the appellee chose open source license for the software involved, not to mention proving that the software involved can be freely used or is free to use. Therefore, Shangbang Company failed to establish its grounds for appeal that its act did not constitute infringement because the “ShopNC” e-commerce system computer software was open source software.
 
This case involves the rules for distributing the burden of proof where the alleged infringer refuses to submit the infringing source code for comparison. Where the defendant refuses to provide the software source program for direct comparison without justifiable reason and the plaintiff can not directly prove its claim because of objective difficulties, there should be a reasonable determination of the proof standard from the perspective of fairness, honest and credibility. This is also the first case in which the alleged infringer’s adoption of open source software constitutes no infringement, and the judgment clarifies the relationship between the open source software knowledge sharing agreement and free use, which may serve as a referential guidance for similar cases to certain extent.
 
(Translated by Zheng Xiaojun, Yuan Renhui)