Guiding Case No. 49

Full Text of the Guiding Case

Keyword(s)

Main Points of the Adjudication

In a situation where a defendant refuses to provide the source program or the object program of the allegedly infringing software, and, due to technical limitations, the object program cannot be read directly from the allegedly infringing product, if the design defects of the plaintiff’s software and [those of] the defendant’s software are basically the same, and if the defendant has no proper reasons to refuse to provide the source program or the object program of his[1] software for direct comparison, [the court] may, in consideration of the plaintiff’s objective difficulty in adducing evidence, determine that the plaintiff’s computer software and that of the defendant are substantively the same and that the defendant bears liability for infringement.

Guiding Case No. 49 2


Article 3 Paragraph 1 of the Regulation on the Protection of Computer Software[2]

Basic Facts of the Case

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Results of the Adjudication

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Reasons for the Adjudication

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CGCP Notes

Regulation on the Protection of Computer Software

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Endnotes

* The citation of this translation of this Guiding Case is: 《石鸿林诉泰州华仁电子资讯有限公司侵害计算机软件著作权纠纷案》(SHI Honglin v. Taizhou Huaren Electronic Information Co., Ltd., A Dispute over Infringement of a Computer Software Copyright), 7 China Law Connect 61 (Dec. 2019), also available at Stanford Law School China Guiding Cases Project, English Guiding Case (EGC49), Dec. 2019, http://cgc.law.stanford.edu/guiding-cases/guiding-case-49.

The original, Chinese version of this case is available at 《中国法院网》 (www.chinacourt.org), http://www.chinacourt.org/article/detail/2015/04/id/1602391.shtmlSee also 《最高人民法院关于发布第十批指导性案例的通知》 (Notice of the Supreme People’s Court on the Release of the Tenth Batch of Guiding Cases), issued on and effective as of Apr. 15, 2015, http://www.chinacourt.org/law/detail/2015/04/id/148149.shtml.

This document was prepared by Sean Webb, Dimitri Phillips, and Dr. Mei Gechlik.  Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more comprehensible to readers.  All footnotes and “CGCP Notes”, unless otherwise noted, have been added by the China Guiding Cases Project.  The following text is otherwise a direct translation of the original text released by the Supreme People’s Court.  The China Guiding Cases Project thanks Jordan Corrente Beck, Oma Lee, Thomas Rimmer, Jeff Yau, Haibin Zhang, and Minmin Zhang for preparing an earlier translation of this Guiding Case.

[1] The terms “he”, “him”, and “his” as used herein are, unless the context indicates otherwise, gender-neutral terms that may refer to “she”, “her”, “it” and “its”.

[2]《计算机软件保护条例》(Regulation on the Protection of Computer Software), passed and issued by the State Council on Dec. 20, 2001, effective as of Jan. 1, 2002, revised two times, most recently on Jan. 30, 2013, effective as of Mar. 1, 2013, http://www.gov.cn/zwgk/2013-02/08/content_2330130.htm.

[3] Yellow highlights included in this section were added by the China Guiding Cases Project to reflect its comparison of this Guiding Case with the final judgment upon which this Guiding Case is based (i.e., Second-Instance Judgment, supra note 18).  Expressions/details highlighted in yellow were not used in the “This Court Opines” section of the final judgment.  The Supreme People’s Court likely included these expressions/details in the Guiding Case for the purpose of improving the Guiding Case’s reasoning section, from which the “Main Points of the Adjudication” section was derived.