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### Case Summary Moumeng Company and Chaojiaochong Company entered into the *Cooperation Agreement on Customized Research and Development of Game Products*, which stipulated that Chaojiaochong Company shall customize and develop the game software *Wo Ju Da De Zei Zhun* (I'm Extremely Skilled at Sniping) for Moumeng Company, and the relevant intellectual property rights shall vest in Moumeng Company. However, Chaojiaochong Company uploaded *Wo Ju Da De Zei Liu* (I'm Exceptionally Skilled at Sniping), a fully plagiarized version of the aforesaid game software, without authorization. Therefore, Moumeng Company instituted proceedings before the court, claiming that Chaojiaochong Company's acts constitute copyright infringement and unfair competition.

The court of first instance held that: the authentication opinions submitted by Moumeng Company had category errors, therefore they shall not be admitted as evidence. In addition, other relevant evidence also failed to prove that Chaojiaochong Company constituted infringement. Moumeng Company was dissatisfied with the judgment and filed an appeal. Finally, the court of second instance revoked the first-instance judgment, ruling that Chaojiaochong Company had committed both copyright infringement and unfair competition. The court applied punitive damages and ordered Chaojiaochong Company to pay more than RMB 3 million in compensation to Moumeng Company.

Key Summary Point 1: In computer software copyright disputes, how to collect evidence relating to infringing game software?

Generally, evidence collection shall cover the download process, download channels, screenshots of operation interface and content, as well as screenshots of recharge and payment transactions of both the right holder’s game and the allegedly infringing game. However, as the right basis for claims in such disputes is computer software, special evidence preservation shall additionally be carried out for the software packages of the aforesaid two games, such as APK (Android Package) files, for the purpose of subsequent judicial appraisal to determine the degree of similarity between the two games at the code level, and further ascertain whether infringement is constituted. In addition, special attention shall be paid to the category and method of judicial appraisal (for example, the case where electronic data shall be adopted as the evidence category but audio-visual materials are improperly used instead). Any error in this regard may largely undermine the judge's confidence in the appraisal opinion, and even directly render the opinion inadmissible.

Key Point 2: How to obtain the revenue sharing details and detailed recharge transaction records of the infringing game involved in the case from game platform operators?

As such information involves the cooperation agreements between the game platform party and the game operation/development party, under normal circumstances, even if the court issues a letter requiring the game platform party to provide relevant information on revenue sharing and recharge flow, the platform party often fails to provide (or may refuse to provide) the aforesaid information on the ground that there is no revenue sharing agreement or cooperation between the two parties, which has been confirmed by a large number of relevant judgments. However, if relevant evidence proving the involvement of the platform party can be obtained during the early stage of evidence collection, such similar grounds for refusal shall not be upheld. The referenceable evidence scenarios are as follows:

Key Point 3: In respect of disputes over computer software copyright infringement, how to understand the "access + substantial similarity" criterion for determining infringement?

(1) Among them, the "contact" element can be easily proved by evidence.

(2) With respect to the element of "substantial similarity", since it is usually difficult for a software copyright holder to obtain the source code of the allegedly infringing software, once the right holder has produced evidence to the extent that infringement is preliminarily established, the burden of proof shall be shifted accordingly. The accused party shall prove that the source code of the allegedly infringing software does not constitute substantial similarity. Otherwise, it shall bear the adverse legal consequences of failure to fulfill its burden of proof, that is, the element of "substantial similarity" shall be presumed to be satisfied.

With specific reference to Case No. 3042, the right holder has conducted comparison of forensic appraisal opinions, which proves that the similarity rate reaches as high as 74%. Under such circumstances, if the respondent challenges the comparison conclusion of the aforesaid forensic appraisal, it shall bear the further burden of proof to establish that it does not constitute infringement, i.e., to prove that no substantial similarity exists between its software source code and the source code of the right holder (e.g., by organizing a new appraisal). However, the respondent has repeatedly refused to provide the source code after the court made multiple requests for the same, and has failed to provide any justifiable reason for such refusal, which renders the infringement comparison impossible. Therefore, pursuant to the provisions of the law, the respondent shall bear the adverse legal consequences arising from its failure to fulfill the burden of proof.