Feynman LIANG Patent & Trademark Attorney	Published on August 12, 2019

Web-based software is a software that runs on a server while users connect to it from their computers using an Internet browser. The user interface webpage is accessible to public while the server usually operates on cloud. In the copyright infringement case regarding web-based software, infringement evidence of both the interface webpage and the server are needed. Unlike US litigation system, in the absence of discovery procedure, evidence collection on cloud may be challenging and different means of evidence collection should be considered. In one recent copyright case Company A v. Company B and Mr. C, the plaintiff succeeded in obtaining infringement evidence of a web-based software in a combination of means.

Company A’s copyrighted software is related to a call center system. In 2015, Company A discovered a competing product provided by Company B with similar functions and interface design. In the promotional material of Company B, it is claimed that Company B’s product is originated from Company A with better performance. What’s more, Company A discovered that Mr. C, the founder and CEO of Company B, happened to be the former Chief Technology Officer (CTO) of Company A. In 2016, Company A started a copyright infringement lawsuit against Company B.

In this case, the infringement evidence was collected in the following means:

1. Notarization of source code of interface webpage

In 2015, the attorney of Company A visited Company B’s website of call center system under the witness of Notary Public and obtained the evidence as below,

a. Company B’s name displayed in the copyright section of the page as “@2015 Company B” on the login page of the system;

b. Interface design and functions (administration, library, black list / red list, customer management etc.) of Company B’s system;

c. JavaScript source code of the call center module as downloaded with the Developer Tool of Internet Explorer

To reach a conclusion as to comparison result between the notarized JavaScript source code of Company B (hereafter referred as “notarized code”) and the copyrighted software code of Company A (hereafter referred as “copyrighted code”), Company A sent the notarized code and copyrighted code to the Judicial Expertise Center and requested for an expert opinion report.

Conclusion of the expert opinion report

a. "uuid.js", "LAB.min.js", "jquery-ui.js", "jquery.tmpl.min.js", "jquery.js", "highcharts.js", "bootstrap.js"
For these 7 JavaScript files, the notarized code and copyrighted code are identical and they are all open source code.

b. "kindeditor-min.js", "jquery-ui-timepicker-addon.min.js", "jquery.json.min.js"
These 3 JavaScript files are third party public library.

c. "utils.js"
For this JavaScript file, 60% - 70% of lines of code between the notarized code and copyrighted are identical.

d. "customer.js"
For this JavaScript file, 24.82% of lines of code between the notarized code and copyrighted code are identical.

e. "interface.js"
For this JavaScript document, there are 104 lines of comment in the copyrighted code, of which 98.08% are identical to the notarized code.

In conclusion, the notarized code and copyrighted code are identical in certain number of files.

2. Court Investigation

Due to the inaccessibility of files and source code on the server, it is almost impossible for the plaintiff to collect evidence. Thus, Company A filed a petition before Beijing IP Court for court investigation on the code of the server. The Court served an order to the cloud service provider and copied the source code of Company B’s server from the cloud.

The comparison of the copied code of Company B (hereafter referred as “copied code”) and the copyrighted code is performed in the following steps:

1.the folders and files to be compared were selected and agreed by both parties

2.The number of files to be compared were proposed and agreed by both parties

3.The correspondent files of the investigated code and the copyright code were compared with the software Beyondcompare.

4.Both parties submitted their observation on the comparison result.

Comparison result
a.Files named "Startup", "test", "businessdichandler", "businesshandler", "mongoDb", "httpprovider", "logger"、"monitor", "kmcataloghandler"
For these files, 65% - 96% of lines of code between the investigated code and copyrighted code are identical

b.Files named "app", "dblogger", "session", "toolsannouncementhandler", "businessreporthandler", "userhandler"
For these files, 10% - 55% of lines of code between the investigated code and copyrighted code are identical

c.Files named "app", "businessdichandler", "businesshandler"
Identical comment lines are found in both the investigated code and the copyrighted code.

d.The structure and name of the folder of nodeServer and cc-server are substantially the same.

Court’s conclusion on the similarity of defendant’s code and the copyrighted code.
1.For the interface webpage code, the notarized code and the copyrighted code share high percentage of identical lines. Therefore, these two codes shall be determined as substantially similar.
2.For the server code, the investigated code and the copyrighted code share certain percentage of identical lines. In addition, these two set of code share identical content in many customized aspects such as comment, file name, file structure. Thus, similarity of these two set of code shall be determined as more than mere coincidence.

In conclusion, it is found by the Court that the disputed code and the copyrighted code are substantially similar code.

The two-prong test of copyright infringement is alleged infringer’s accessibility to the copyrighted code and substantial similarity of the alleged infringing code and the copyrighted code. In this case, since the Founder and CEO of Company B used to be the CTO of Company A, he was reasonably authorized to get access to the source code of Company A, therefore satisfying the first prong test. As mentioned above, the court determined these two codes are substantially similar, therefore satisfying the second prong test. Therefore, it is found that Company B and Mr. C infringed Company A’s copyright.

In the software copyright infringement case, source code is the key evidence and proprietor is advised to collect sufficient and convincing evidence with various means. Besides notarization and court investigation, other means such as evidence preservation by court judge, evidence preservation in the administrative proceedings should also be considered based on complexity of the case and other factors.

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