The Application Of Fair Use System In Open Source Software Infringement Cases

In recent ten years,software technology has developed rapidly,and the emergence of various new software has profoundly changed People’s Daily work and life style.In order to accelerate the development of the industry,the behavior of open source software is gradually popular,and quickly become the main way of development in the world.There are more and more disputes about the use of open source software.The application of fair use system in software infringement cases has triggered a heated discussion from all walks of life.Fair use system is the limitation on the rights of copyright,the copyright law of the People’s Republic of China in 2021 to modify article 24 reasonable terms of use,in addition to the original article 12 reasonable usage scenarios,increase out terms,under other circumstances stipulated by laws and administrative rules and regulations can also be concluded that the rational use of,broaden the scope of fair use.As early as before the legislation,in judicial practice,cases of various works broke through the applicable situation of fair use emerge in an endless flow.The Supreme Court issued guidance Opinions to guide the trial of such cases,and the court supported the exception of some cases and made innovative interpretation of fair use behavior with the four-element law.Fair use is also one of the defense ideas in open source software infringement cases,but the judges in China do not support this defense idea for open source software.This paper begins with the case of infringement of open source software,one of the top ten intellectual property cases of the Supreme Court in 2021,to discuss the difficulty of judging the open source license as a contract.The court still believes that it is more appropriate to judge it in the form of infringement.From the perspective of infringement,the defendant can argue from the perspective of fair use of open source software.In order to seek the help of fair use system,this paper analyzes the characteristics of open source software and the four elements method of identifying rules.The purpose of open source software is to balance the interests of copyright and users and promote the development of software industry,which is the same as the legislative purpose of fair use system.The judicial practice determination rules in China refer to the Four elements of Fair use law in the United States,and then analyze the most famous open source software fair use cases in the United States in the past ten years.It is found that two elements are crucial to the judge’s final determination of fair use,namely the nature and purpose of use of open source software being used.Specifically,functional software in open source software is conducive to fair use,and commercial use without competition can also be identified as fair use.Based on the empirical analysis of open source software infringement cases in China,the courts have different judgments on whether the use of open source software constitutes infringement and whether to protect functional open source software,and there are some cases where the courts of second instance revoke the judgment of first instance and revise the judgment again.Some defendants argued that the commercial use of open source software without competition should not be liable for infringement,but this was not supported by the court.However,commercial use is an important driving force for the establishment and development of open source software in the industry.Facing the dilemma of judicial adjudication and the new development of the theory of fair use of software,this paper puts forward a new idea of improving the fair use of open source software adjudication: at the legal level,promote the application of fair use system in open source software cases,specifically for amending the Regulations on the Protection of Computer Software or formulating the applicable judicial interpretation;Learn from the industry rules to enhance the understanding of functional open source software,for the open source software that can not be separated from the original content,including some functions,the recognition of fair use should be more relaxed;From the perspective of jurisprudence,the use of commercial purpose without competition should be analyzed in combination with other influencing factors.Commercial purpose is not an absolute negative judgment factor.