Research On The Application Dilemma And Perfection Of Expert Assistants In Software Copyright Infringement Litigation

In software copyright infringement litigation,the professional nature of computer software works has led to great difficulties for judges in ascertaining the technical facts of the case.In order to resolve this difficulty,judges usually apply judicial experts to assist in ascertaining the technical facts of the case,and this tendency of judges is the main reason for the frequent occurrence of the phenomenon of "examination instead of trial" in such cases.Expert assistants have a number of advantages over forensic experts.Simply put,expert assistants can not only help judges to identify the technical facts of a case,but can also guarantee the effective implementation of the parties’ right to appeal.In judicial practice,expert assistants have not been widely applied,and there is still a low application rate and a low rate of admissibility of opinions.In view of this,this paper attempts to analyze the reasons for the application of the dilemma of expert assistants in software copyright infringement litigation based on the necessity of applying the expert assistant system in software copyright infringement litigation,combined with the relevant provisions of the current legislation on expert assistants,and absorbs the relevant experience of the application of the expert witness system in the United States,and puts forward some suggestions for the improvement of the dilemma.The main contents are as follows.The first part is mainly divided into two aspects: firstly,the background introduction of the expert-assistants system;secondly,the necessity of applying the expert-assistants system in software copyright infringement litigation is emphasized by expounding the special characteristics of computer software works and the functions and advantages of expert-assistants;The second part mainly analyzes the current situation of expert assistants in software copyright infringement litigation,including the status of legislation and the status of judicial practice;The third part mainly analyzes the reasons for the dilemma of the application of expert assistants in software copyright infringement litigation;The fourth part analyzes and elaborates on the expert witness system in the United States from various aspects,with a view to providing inspiration for the improvement of the system of expert assistants;The fifth part mainly puts forward some suggestions for improving the dilemma of software copyright infringement litigation.It mainly includes six aspects: First,clarify the access conditions of expert assistants.Second,give expert assistants an independent litigation status.Third,the classification of expert opinion as a new type of evidence.Fourth,refine the rights,obligations and legal responsibilities of expert assistants.Fifth,improve the procedures for expert assistants to participate in litigation.Sixth,optimize the technical fact ascertainment mechanism by excluding evaluators from participating in such litigation and effectively linking expert assistants with technical investigators;The final section summarises the foregoing with a view to providing feasible ideas for the widespread use of expert assistants in software copyright infringement litigation.There are two main innovations in this article: firstly,the application of the system of expert assistants in software copyright infringement litigation is taken as the entry point,which is not currently discussed in academic circles,filling the gap in theory;secondly,in response to the problem of too many mechanisms for ascertaining technical facts,the viewpoint of this article is to exclude judicial appraisal and effectively bridging expert assistants and technical investigators.The shortcomings of this paper are mainly in three aspects: firstly,there are only nine cases that meet the research questions of this paper,and there are not enough cases to support the author’s empirical research;secondly,because of the lack of language proficiency,the understanding of foreign literature is still rather superficial,and the comparative method part of this paper is not profound enough;thirdly,due to the limitation of time and professional level,the improvement measures proposed in this paper need further discussion in terms of research depth.