Research On Legal Issues Of Evidence Obtained By TELNET

The evidence obtained by Telnet is an important evidence for software copyright owners to obtain copyright infringement in the Internet era.A study of 264 existing judgments on such evidence reveals the extent to which courts have upheld or rejected highly similar claims,and "different judgments on the same case".The main difference of the judgment lies in the distribution of the evidence ability and proof power of the feedback information and the burden of proof of both parties.To solve this problem and reasonably evaluate the legal effect of the feedback information,we should also start from these three aspects.As far as the evidence ability is concerned,firstly,as the feedback information of electronic evidence,the defect of its fallibility is made up for by its observability,so the "rational view of truth" should be adhered to in evaluating its authenticity,and the authenticity of its notarial evidence should be recognized without counterevidence.Secondly,the form of notarization is legal,and it does not seriously infringe the rights and interests of the infringed,does not violate the prohibitive provisions of the law,and does not violate public order and good customs,so it has substantive legitimacy.The feedback information reflects that the server software whose name and version are consistent with the copyright software enjoyed by the plaintiff exists on the server being sued for infringement.Therefore,it has a legal relevance with the facts to be proved.To sum up,the feedback information has the evidence ability.As far as the proving power is concerned,the feedback information shall be regarded as the original evidence,which can completely reflect the infringement fact after being reinforced,and the whole process shall be conducted under the supervision of the notary personnel without any possibility of artificial modification.The respondent's defense of "using other software/modifying surface information" does not conform to the logic and daily life experience,and relevant counterevidence does not reach the level of making the case "get into the uncertainty of authenticity",so the feedback information should be deemed to have preliminary proving power.One of the main reasons why the feedback information is not accepted is that it can be modified by remote terminal(involved infringement server).Due to the distribution of burden of proof of applicable laws and regulations specify standard fair distribution cannot be losing risk,the right holder has put forward the preliminary evidence of infringement facts,modification of the key evidence(server logs)by the alleged infringer actual control way of proof,the plaintiff has been exhausted,"modified by remote terminal" of feedback information of the burden of proof should be transferred to the alleged infringer.In addition,in the case of multi-subject infringement,the burden of proof should be specifically determined according to the provisions of substantive law on software copyright infringement.