The Infeasibility of Creating an Open Source Defense in Software Copyright Infringement Litigations in China-Also a Commentary on Weilai Case and Yibang Case
Open source defense(OSD)means that if a software copyright owner vio-lates an open source license,it loses the right to enforce its copyright in software infringement proceedings based on proprietary code infected by open source code.Different courts in China have adopted very different attitudes toward the question of whether to uphold this defense in their decisions.This article argues that China should not create OSD because China lacks a spe-cific legal basis to support OSD in software infringement litigation.By bypassing the application of specific provisions in the Copyright Law and the Regulations on Computer Software Protection and directly applying the general principles of fairness and good faith to support OSD and deter-mine copyright infringement in individual cases,judicial authorities in China will not achieve the goal of upholding the principles of fairness and good faith but rather undermine the stability of copyright law and property order of software copyright market in the country.From a compar-ative law perspective,the U.S.inequitable conduct defense system,which originates from the U.S.patent law system and aims at regulating fraud in copyright registration,needs to be sup-ported by various ancillary systems,such as fraud defense in the Federal Rules of Civil Proce-dure,unclean hands doctrine in common law,and case law involving fraud determination,and is closely related to the formalistic historical tradition that places importance on copyright regis-tration.Since China lacks corresponding systems and legal traditions and the shortcomings of the inequitable conduct defense system have been proved in the U.S.in recent years,it is not appropriate to transplant this system into China.In creating an OSD by legislation for software works alone,China will also face insurmountable difficulties in the design of specific rules.This is because if legislators adhere strictly to the value of good faith,they must create a litigation defense of obstacles to rights and include all types of contractual violations in the scope of excu-ses as far as possible,thereby inevitably dragging copyright infringement lawsuits into the inves-tigation of misconducts,leading to a"case within a case"dilemma,and greatly increasing judi-cial burden and the cost of open source compliance for the software industry.As a result,it would lead to an outcome inconsistent with the principles of fairness and proportionality.China should stick to its present rule on the protection of infringing derivative work,which takes into account the weighing of various interests and serves to maintain the stability and systematicness of Chinese copyright law.It has limited negative influence on the continuous dissemination of open source code and,therefore,is a better solution to the problem.
NETL
NSTL
万方数据
