How to obtain the evidence of software infringement

The collection methods of software infringement evidence are as follows:

1. Take evidence by yourself and entrust a lawyer to investigate and collect evidence. Due to the strong professionalism of intellectual property cases, it is difficult for the obligee to obtain evidence by himself, so it is very accurate to grasp the direction and scope of obtaining evidence. Lawyers specialize in legal work and provide legal services to the society as their profession. Lawyers not only have rich legal knowledge, but also have rich experience in handling cases and skilled litigation skills, and can make appropriate choices for the parties at different stages of litigation. Generally speaking, it is much more convenient for lawyers to investigate and collect evidence than the parties, and the scope of evidence collection is more extensive and accurate. In judicial practice, judges often treat lawyers differently and provide more convenience;

2. Apply to the notary office for evidence preservation. One of the statutory businesses of the notary office is to "preserve evidence". Notarized evidence has the effect of being presumed to be true, and the effect of preservation by notary office is equivalent to that of preservation by the court ex officio. Before litigation, the parties can make full use of the notary office to collect and preserve evidence, which is an effective measure to prepare before litigation;

3. Apply to the court for pre-litigation evidence preservation;

4. Apply to the people's court for evidence.

Criteria for determining software infringement are as follows:

1, contact the attachment. According to this standard, as long as the connection is found, any reproduction will be considered as infringement. However, we think this view has some limitations, because it ignores the verification of whether there is "substantial" similarity between two software works, and expands the protection scope of computer software to the "ideas" contained in computer programs;

2. The computer software program needs to be analyzed in two steps. First of all, the court must confirm whether the "ideas" embodied in the two computer software programs are the same: if they are different, they do not constitute infringement; If they are the same, then the second step should be to try to verify whether the programs of the above two kinds of computer software are substantially similar in "expression form";

3. Overlapping criteria widely agreed by all parties. According to this standard, the plaintiff must prove that the defendant "used" the program works that the plaintiff enjoyed the prior software copyright without permission when completing its software products; The defendant's software work is a kind of overlapping copy, that is, the essential part of the plaintiff's software product overlaps with the content developed by himself. This standard mainly focuses on the "similarity in quality and quantity" between two software products, which is a good judgment method in practical application.

To sum up, to obtain the evidence of software infringement, we must first prove the fact that the plaintiff's software copyright exists effectively. The plaintiff may provide the target program and source program of the software, software documents, published evidence, certificate of transferee or heir, software registration certificate, etc.

Legal basis:

Article 2 17 of the Criminal Code of People's Republic of China (PRC).

The crime of copyright infringement aims at making profits, and in any of the following circumstances, if the amount of illegal income is relatively large or there are other serious circumstances, it shall be sentenced to fixed-term imprisonment of not more than three years and shall also or only be fined; If the amount of illegal income is huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined:

(1) Reproduction, distribution and dissemination of written works, music, fine arts, audio-visual works, computer software and other works prescribed by laws and administrative regulations to the public without the permission of the copyright owner;

(2) Publishing books with exclusive publishing rights enjoyed by others;

(3) Reproduction, distribution and dissemination of audio and video products made by the producer to the public through the information network without the permission of the producer;

(4) Reproduction and distribution of audio and video products of their performances without the permission of performers, or dissemination of their performances to the public through information networks;

(five) the production and sale of counterfeit works of art;

(6) Technical measures taken to intentionally avoid or destroy the copyright to protect the copyright or copyright-related rights of his works, audio-visual products, etc. Without the permission of the copyright owner or the copyright-related obligee.