The Legal Effect Of Telnet Remote Forensics In Software Copyright Infringement Cases

With the development of the internet technology,the software copyright infringement cases increase quickly.Due to the vulnerabilityofevidence in software infringement,as well as the diversification and concealmentof the infringement,the software copyright owners obtain evidence and put to the proof difficultly,which has become one of the most conspicuous obstacles for them toprotect copyrights.Therefore,it is of realistic significance to explore and innovate the ways of getting evidence in software copyright infringement cases.In this background,Rhino Software Inc,which taked the Telnet remote forensics to propect rights,obtaining the target server's feedback information through the Telnet command remote detection target server port 21,and notarized preservation of evidence,in order to give proof of the infringement which was occurred.Different courts have different points and determination decisions ofthe effectiveness of the forensic ways and the information obtained by this way,Which leads to opposite judgments of insimilar cases in the judicial practice,and it causes wideattention.TakingRhino Software Inc software rights case as an example,this paper demonstrates the effctiveness of the evidence obtained by remote forensics,based on the feasibility of Telnet remote forensics technology,and it analyzes the effect of the remote forensics from the perspective of the burden of proof allocation,illustrating the specific application of Telnet remote forensics in the software copyright infringement.The full text is divided into five parts,about thirty thousand words.“The first part:The origin of the problem: the reflection of why series cases have different decisions”.This part makes a brief introduction of Rhino Software Inc v.Geoby Company software copyright infringement and Rhino Software Inc v.Shenzhen Netac software copyright infringement,summarizing the differences of judicial determination between these two cases in the Telnet remote forensics,such as whether it is necessary to apply Telnet remote forensics to comparing source code in software copyright infringement cases,whether Telnet remote evidence has evidence effect,and whether Telnet remote evidence can prove the fact of infringement.“The second part: the technical principle of Telnet remote forensics in software copyright infringement cases”.Through analyzing the technical principle of Telnet remote forensics,this part determines technical feasibility and resulting certainty of Telnet remote forensics;The feedback information obtained by Telnet remote forensics is “electronic data”by Law of Civil Procedure,this part prove the reliability of Telnet remote evidence through analyzing its digital,objectivity,vulnerability,technicality and other characteristics.“The third part: the evidence effect of Telnet remote evidence in software copyright infringement cases”.The validity of the evidence should be recognized from both evidence and proof.At first,this chapter explains the concept of evidence competence and proof ability,the judgment of evidence competence is premised on the basis of whether the material has proof ability.Secondly,afteranalyzing the evidence capability of Telnet remote evidence,including three aspects :authenticity,legality and relevance,this paper point out Telnet remote evidence has evidence competence,because it is real,legal and valid.Finally,according to the rules of evidence,the standards of proof,the rules of thumb and logic,this article makes comprehensive evaluation of Telnet remote evidence and argues that Telnet remote evidence has reached the standards of proof,which can prove the fact of infringement is true,so Telnet remote evidence has proof ability.“The fourth part: the effect of Telnet remote forensics under the theory of burden of producing evidence distribution”,this part mainly analyzes whether it is reasonable for the plaintiff to take the feedback information obtained by Telnet remote forensics as evidence,which can prove the defendant's infringement,from the perspective of the distribution of proof burden.First of all,because of the concealment and diversification of infringement in copyright cases,legal owners have difficulties in proofing.Compared with the traditional ways,such as evidence preservation and so on,remote forensics has the advantages of convenience and efficiency and costssaving,which is the right remedy for legal owners' difficulties,and remote forensics has realistic rationality.Secondly,according to the general principle in the distribution of the burden,the transfer of the burden of proof and the presumption of the burden of proof,etc,the article demonstrates effect of Telnet remote forensics in copyright infringement cases,and points out that Telnet remote evidence has evidence ability before applying the transfer rules in the burden of proof,it means that the defendant bears the burden of proof.If the defendant can not provide evidence which can defeat the plaintiff's claims,the court should affirm that the infringement is established according to principle of presumption.“The fifth part: the application of Telnet remote forensics in the software copyright infringement cases”,this part mainly discusses the specific application of Telnet remote forensics in the software copyright infringement cases in practice.First of all,the legal evidence collection is the premise of the application of Telnet remote forensics in software copyright infringement cases,which acquires legel subject and procedure for evidence collection;Secondly,the principle of judging infringement in software copyright cases is the principle of“Substantial Similar and Access”,but it is difficult for plaintiff to provide evidence which can prove that plaintiff's source code and defendant's source code are substantial similar,it is unfair to require plaintiff to provide substantial similar evidence all the time.Telnet remote evidence can meet requirement of the Evidence Law,which can prove the fact of infringement,causing the legal effect of putting to the proof.Finally,Telnet remote evidence has strong proof ability,because it has reached a high degree of probability,and the plaintiff should bear the burden of proof at this time.If the defendant can not provide evidence which can defeat the proof ability of Telnet remote evidence,the court should approve of plaintiff' claims accordingly.