The Identification Of Computer Software Copyright Infringement

China, like most other countries, is based on copyright law to protect computer software works. The traditional copyright works are generally used for reading and appreciating for people, but the computer software is a new technical knowledge object with double attributes of works and tools, its fundamental value lies in its inherent function. This makes identifying software copyright infringement different from the traditional copyright works in many details. Moreover, the computer software itself is highly technical, the legal issues involved are more complex, causing the situation that the identification of software infringement has always been a problem in judicial practice."Substantial Similarity and Contact" principle is the most commonly used method in the identification of software infringement. First, judging whether the two software works involved are "substantially similar" or not, then determining whether the defendant has the opportunity or condition of "contacting" the plaintiffs software or not. It is worth noting that the plaintiff only needs to prove that the defendant has the possibility of "contacting" , and does not require proofing the specific facts of"contacting". Finally, giving the defendant a opportunity to make the reasonable explanation for the "substantial similarity".When identifying the infringement of software reverse engineering, we should distinguish between commercial use and non-commercial use, taking different recognition criteria. In the case of non-commercial use,we can use the internationally available "three-step test standards"; In the case of commercial use, we should determine whether the infringer is a legitimate user or not, whether only to obtain the compatible information of the software or not, whether able to obtain compatible information through other means. That’s to say,in the case of commercial use,it is legal only for legitimate users to obtain compatible information to implement reverse engineering. When identifying the infringement of software end-user, we should focus on commercial use elements and fault elements.In judicial practice, when identifying the software infringement with "Substantial Similarity and Contact" principle, there is a tendency of attaching importance to "substantial similar" and despising "contact", which is undesirable. We should also attach importance to identifying "contact". Moreover, the judge should do his duty to judge in the referee process and shouldn’t rely on the expert opinion excessively. In addition, in software infringement cases, the notarization of the notary office shall conform to the procedures prescribed by law and technical experts should be transparent.