Origin News
"Tomato Garden" case first instance of trial
"Tomato Garden" case of first instance sentenced on Aug. 20, according to the law of copyright infringement piracy sentenced to a company operating a fine of nearly 900 million, equivalent to 3 times the illegal income, four defendants were each sentenced to 6 months to 3 years 2 years in prison.
Court found that: from December 2006 to August 2008 period, the Interactive Advertising Co., Ltd. Sichuan Network Alliance (handled separately) and total defense units in the soft network Technology Co., Ltd. Chengdu cooperation, the general manager of Sun Xianzhong were soft direct the company to market Director Tian-Ping Zhang and "Tomato Garden Studio" Leader Hong Lei, Liang Zhuo Yong cooperation of employees, without Microsoft's permission, copy the Microsoft Windows XP after the production of variety of computer software, "Tomato Garden" software, through the Internet in the "Tomato Garden" website, the "heat" websites for public download.
Violation of copyright law to the court sentenced the defendant unit of the soft network Technology Co., Ltd. Chengdu fine 8,772,861.27 yuan; accused Sun Xianzhong and Hong Lei were sentenced to 3 years and 6 months imprisonment and fined one million yuan; defendant Tianping and Liang Zhuo Yong were sentenced to 2 years and fined 100,000 yuan.
Software development to respect the copyrights of others, not to start copying or reproduction based on the works of others
"Tomato in the right path forward on the difficult, tomato garden needs your support." Was all the rage free download operating system's "Tomato Garden" has become a guide. The concern behind this is the first since the national network of large-scale software piracy case: Tomato Garden site operating unit of Chengdu, the defendants were soft Network Technology Co., Ltd. and four related to the crime the defendant was prosecuted for criminal liability of copyright infringement, in which the site sentenced to imprisonment for Lei Hong 3 years and 6 months and fined one million yuan.
Case of playback
Habit does not mean that legitimate
In 2003, just born, "Tomato Garden" was only a little-known small websites. As webmasters Hong Lei crack Microsoft Windows XP operating system, launched the "Tomato Garden" edition for Windows XP users a free download, tomato garden snowballing traffic was increasing.
Early "Tomato Garden" version of Windows XP due to increased customer use of comfort. The software combines the wisdom of a number of Internet users based on the cancellation of the Microsoft Genuine validation process, shut down or uninstall the original operating system functions that do not commonly used to speed up the platform speed, well netizens.
When the "Tomato Garden" fame gradually expanded, some software companies have to find the door, trying to package this platform to promote. Hong Lei's a lot of money income is from "Tomato Garden" version of Windows XP bundled with rogue software plug-ins and other companies brought into commission.
Last year in August, Microsoft (China) Tomato Garden piracy software company Microsoft's interest in serious damage to the State Copyright Bureau and the Ministry of Public Security conducted a complaint, "and has been very seriously."
It was reported in Hong Lei was arrested a few days, Hong Lei and its partners two years ago, recording Jingxian chat network, part of the transcript that is involved in tomato garden to rely on bundled plug-ins such as a monthly income of 100,000 yuan content.
August 20, the closely watched case was finally settled last 1 year. According to reports, Microsoft China said that it will be China's crack down on software piracy as a milestone in the network.
Experts
"No matter whether the profit can be an infringement"
"Tomato Garden in doing is cracking Microsoft Windows XP system was modified genuine validation module of the system, the authentication module is similar to any one of us to buy genuine software serial number, and the authentication module is to to protect the interests of the copyright owner. and tomato garden in the cracked version of the system bundled with other software in order to collect the proceeds of the software vendor advertising, which show that the profit he had. "a person in charge of enterprise software development said.
"No matter whether the profit can constitute infringement," the vice chairman of China's Intellectual Property Research Professor Li Shunde put forward their views, "the so-called piracy is the unauthorized reproduction, transmission, tomato garden without permission on its Web site for users of pirated software download, is the infringement, so profit is not whether or not an infringement of the necessary conditions, even if it is free for users to download, use is infringing. "
He explained that the garden tomato spread through the network to provide a large number of pirated Windows XP system, directly damage the legitimate rights and interests of Microsoft, this behavior is infringement.
"If you think a good use of their own optimized software, but only own use, or to learn for the purpose of research, do not constitute infringement." Said Li Shunde.
Beijing Renhe Dong Haifeng, deputy director of law firm share the same view: "As long as the illegal copying is infringement, and whether the profit is an important basis for the amount of compensation."
"While tort reform is still the individual words and phrases"
Li Shunde, said software piracy around the world are now more serious, although the piracy rate declined each year, but the situation is still grim. "Now a lot of software infringement on the existing software is a minor adjustment."
It is understood that software copyright infringement is the software to others without the permission of the copyright owner in violation of the law, the exercise of the software without permission of the copyright owner of the copyright interest, or in violation of the law, unauthorized impede the normal exercise of copyright the software copyright owner of various interests behavior.
Donghai Feng said that the current judicial practice, most judicial use of "contact + substantial similarity" standard to the infringement. There are two elements that form: the defendant had contact with the plaintiff's software; and software and the plaintiff the defendant materially similar software.
The judiciary in determining the plaintiff allegedly infringing software and software that constitute substantial similarity, the main contrast between the two source or object program, the software stored in the content, software installation, the installation directory and the specific operating conditions and other factors comprehensive measure of both is the same or similar; one of the most important indicator is the comparison between the source code or object code. If the defendant and the plaintiff's software, software source code or object code is the same, although the actual user interface, operating parameters and there exist differences, both similar in substance will be found there.
In the case of tomato garden, Hong Lei at the crack of Microsoft's Windows XP system, despite the appearance of the system interface, local function has been adjusted, but the background did not change the core program, "Tomato Garden" edition of Windows XP Microsoft's Windows XP system with the existence of substantial similarity. In this case, the judiciary should be determined to reproduce and distribute Hong Lei, "Tomato Garden" edition of Windows XP system, constitutes the crime of copyright infringement.
In this regard, Li Shunde's even more popular to explain: "If you studied before Microsoft's operating system, independently developed a system, it is certainly not the infringement. Tomato Garden, the changes made did not change the nature of Windows XP" Li Shunde, said, "is built around a theme such as writing the same article, if you own wording, it is certainly not the infringement of different wording, but if the whole article took to do the changes of individual words, it is clear that infringement was."
Revelation 3:00
Do not venture built on plagiarism
Dong Haifeng (Beijing Renhe deputy director of law firm): "Tomato Garden" is undoubtedly the case to the people engaged in software development industry with great caution. Hong Lei initial break and "improved" Microsoft Windows XP operating system, whether it is convenient for users or for-profit operation, we do not know, but the case occurs, Hong Lei, who have passed the "tomato garden" version of Windows XP systems through bundled plug-ins, online advertising, etc. for a huge profit, it is an indisputable fact.
For software development for the main unit, we must respect the copyrights of others, not to start a foundation built on copied or reproduced based on the work of others, or, if the copyright owner claiming rights, the consequences would be disastrous. Copyright infringement arising from the legal consequences not only to civil liability, administrative responsibility, in serious cases, the perpetrator may also be criminal liability. A software copyright infringement will be making tomato garden site and its operators anything, it had our attention.
In addition, for-profit business entity must be purchased through legal means copies of software, if Zai compiling your own software, the process, it requires use of other people's software, should Qude permission to use the software copyright owner, conclude a written license agreement so that normal business activities to their unnecessary loss.
Need to raise public awareness of intellectual property
According to Li Shunde (China Intellectual Property Society, vice chairman): Tomato Garden case has once again told us, software development, dissemination, use, can not be built on the basis of infringement, must act in accordance with full respect for intellectual property rights of others. R & D for their own software, learn to make full use of the intellectual property system should be protected.
It was reported in a survey of the portal, hold "Tomato Garden Windows XP allows users to more affordable, convenient, and I am sorry" attitude accounted for the total number of surveyed 72.73%, while identity "event is not so serious, I am opposed to "The number has reached more than 18.32%. This shows that many people do this seriously, so the case should be a good warning. In the anti-piracy software, we still have a lot of work to do. Now legislation has been more perfect, we need to do is to strictly enforce the law, as well as raise public awareness of intellectual property.
Patent protection for software is more "hard"
According to Li Shunde: now the world's most prevalent is the use of copyright software protection that copyright protection, most of the world are used to protect software copyright, this approach is simple and low cost.
In addition to use of copyright protection software, there are other protection methods, which compare the major is to use patents to protect. Patents protect the ideological content of the software program that is technology.
For example, there may be a software, if you clear idea of its software technology, and use another computer language to write a software, as long as the technical idea is the same, although the angle does not constitute an infringement of copyright, but patent protection point of view is still infringement.
In addition, some other means can be taken to protect the software, such as the use of technical measures or technology secrets, that is, to protect trade secrets.
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