From a Cat to a Tiger

[Judge Dongtao Li]

The Facts

The plaintiff is a software engineer.

The defendant is a software company. 

In July 2002, the plaintiff and the defendant signed an employment contract.

According to the contract, the plaintiff was employed by the defendant as the project manager in charge of the enhancement of its anti-virus software Power K1.0.

In order to get the copyright of the final revision, the defendant also agreed to pay the plaintiff half of the profits of the new software and invest the money necessary for the new development.

After the new software (called Power K2.0) was placed on the market, the defendant paid the plaintiff according to the contract. 

Two months later, the plaintiff resigned and founded his own software company and began to sell software that was almost the same as Power K2.0.

The plaintiff asked the defendant to stop selling Power K2.0, but the latter refused.

The plaintiff sued the defendant for copyright infringement because Power K2.0 was identical to Power K1.0; in fact, 80% of the source code was the same. 

The defendant argued the copyright infringement was not established because Power K2.0 was completely different from Power K1.0 in function.

In the court hearing, the plaintiff admitted Power K2.0 was completely different from Power K1.0 in function.

Opinion

The court held that in this case, though 80% of the source code in the two editions of the software was the same, changes in the remaining 20% had led to a breakthrough in function. 

The defendant invested money in the project, and the plaintiff was one of the employees of the defendant to develop the new software. Under a clear agreement, the defendant was the copyright owner of the Power K2.0.

Therefore, the copyright infringement was not established.

Note

For software to be eligible for copyright protection, it must be original and fixed in a tangible medium of expression.

The answer to the question regarding copyright infringement lies in originality: software is not only the expression of an idea, but also a tool to realize an idea.

The function of software may be used to decide its originality.