In this summary, we outline the primary evidence collection strategies employed in computer software infringement cases in China:

Selling and Distributing Pirated Software

The key aspect of evidence collection in these cases is acquiring the source code (installation package) of the software that the infringer has sold or distributed. In judicial practice, methods such as offline notarized purchases or online screen recordings are typically utilized for evidence collection. This process often involves documenting the entire purchase and download of the software source code, along with sealing the software package to ensure its integrity throughout judicial proceedings.

The Guidelines for Evidence Rules in Civil Litigation of Intellectual Property Rights from the Beijing High People’s Court emphasize that remote forensics may be employed based on specific circumstances, indicating the court’s endorsement of this method. In China, utilizing e-platforms or applications for evidence collection has become increasingly common, offering a more efficient and cost-effective alternative to traditional notary office methods. Evidence preserved through these platforms, such as United Timestamp, Baoquan.com, Notarization Cloud, and 360 Truth Forensics, is widely accepted by Chinese courts.

Case Example:
In a recent case, the attorney for the rights holder used an alias to connect with the infringer’s sales representative via WeChat. During their conversation, the attorney expressed interest in purchasing pirated accounting software, proceeded with the payment, and received the installation package via email. The sales representative also provided the software instructions and activation codes through WeChat. The attorney successfully downloaded and activated the software, with the entire process documented and witnessed by a notary.

Using Pirated Software

Evidence collection in cases involving the use of pirated software can be more complex, particularly when it comes to preserving evidence from the customer side of standalone software. However, the rise of various online forensic tools has made the process more accessible and efficient in recent years. The primary methods for collecting evidence in these cases include:

1.  Court Applications for Evidence Preservation or Administrative Complaints

Many utility and industrial software applications installed on PCs, such as AutoCAD and Photoshop, utilize these methods for evidence preservation. Plaintiffs can apply to the People’s Court for pre-litigation evidence preservation or file complaints with local copyright enforcement authorities, who will then send officers to investigate and preserve evidence at the infringer’s location.

Court Examples:

• After receiving a complaint from Hexagon, local authorities investigated the defendant’s premises and documented the infringing software.
• Siemens entered the infringing website, notarized the infringing information, and the court subsequently conducted evidence preservation based on Siemens’ application.

2. Notarization or Screen Recording:

Rights holders have increasingly turned to online screen recording or notarization to gather evidence for server-side software. This typically involves accessing the target server and documenting the unique identifiers of the rights holder’s software. The process and results are recorded as evidence, often with the hash value uploaded to a blockchain for verification to ensure the evidence remains unaltered.

3. Web Forensics or Directory Forensics Tools

Web forensics tools can capture the source code, images, and content of web pages as electronic evidence. This method has matured, with services like Baidu forensics and cloud forensics providing source code-level web forensics. Directory forensics, a newer method, constructs access links based on copyrighted software files, automatically preserving all corresponding files as an electronic evidence package.

 Judicial Practice and Perspectives on Remote Forensics

While remote forensics offers valuable insights, it does have technical limitations. The information retrieved may only reflect the name and version of the infringing software, lacking the program code necessary for definitive judgments. Additionally, server owners may alter software settings, leading to discrepancies in the information retrieved.

As a result, the courts’ stance on the admissibility of evidence obtained through remote forensics has evolved. Many judges now recognize that while the information may not provide absolute certainty, a strong correlation between the retrieved data and the facts in question can still fulfill the plaintiff’s burden of proof. If the defendant cannot demonstrate legal use of genuine software, the court is likely to support the plaintiff’s claim of copyright infringement. The acceptance of remote forensics as a valid form of evidence has been increasing in recent years.

As technology and practices continue to advance, we anticipate the emergence of more innovative models for remote forensics in addressing software piracy.