Research On The Burden Of Proof In Computer Software Infringement

Computer software is normally protected by the copyright law. The torts over computer software are much more diversified and hard to be discovered than the regular civil torts. The plaintiffs are hard to obtain the direct evidence of tort. The court will apply the principal of "the burden of proof is on the party claiming", which mechanically assigns the burden of proof to the plaintiff. "Idea-Expression Identity" and "Reverse Engineering" would make it even harder for the plaintiff to get a favorable judgment. Therefore, in software torts cases, the defendant should also assume the burden of proof under different circumstances:if the alleged infringers are publishers, producers, distributors or lessors, etc, the burden of proof should be inversed to the defendant. For other computer software tort cases, the burden of proof should be shifted to the defendant after fulfilling certain standard. If the defendant cannot fulfill the shifted burden of proof, the court could assume that the defendant is liable for the alleged tort according to the experiences.