How to beat off the "software troll" or how much now calculators?

    Have not heard of the "software trolls"? We faced such a case in practice and want to share experience on how to counteract them. In a specific case, which has already been the subject of proceedings in two courts, we want to not only tell the practical aspects of the defense, but try to dig deeper and touch upon the theoretical issues of protecting software rights.




    Essence of the matter


    Parties


    Plaintiff - IP, copyright holder of a computer program with the uncomplicated name “Interactive work cost calculator” for installing interior doors.

    Defendant - IE engaged in similar activities, the site of which also has an interactive calculator.

    Requirements


    The plaintiff, claiming that he is the copyright holder of this program, filed a claim with the Moscow Arbitration Court with a lawsuit banning the use of this program in any way on the Respondent’s website and recovering 400,000 rubles of compensation. Just think about it - 400 thousand rubles for a calculator !

    Justification


    In support of his claims, the Claimant indicated that “the program posted on the Respondent’s website completely repeats the interactive calculator, the copyright holder of which is based on the certificate of registration of a computer program issued by Rospatent”.
    The Claimant followed the beaten path and was sure of the result ...

    It is worth paying attention to the fact that a year earlier the same Claimant won the trial in a similar case, in a court of general jurisdiction - in the Istra City Court. The amount of compensation sought was the same - 400 000 rubles, but later the judicial board for civil cases of the Moscow Regional Court overturned the decision of a lower court and reduced the amount of compensation to 100 000 rubles . Which is also a lot for a program consisting of primitive code.
    Apparently, realizing the possibility of an ideal “trolling” scheme, which also brings money, the Claimant filed a similar lawsuit. After all, it turns out that you can make claims against everyone who has a similar calculator on their site.



    However, all the hopes placed by the Claimant on this scheme collapsed at the time of the decision of the Moscow Arbitration Court.

    What did you manage to prove in court and why did the court refuse the troll?


    1) In the decision, the judge briefly and clearly indicates that "the algorithms laid down in the Claimant's program do not have any non-standard or original designs ." The expert’s report concluded: “All operations were performed as standard, and all the techniques used were many times described in public web programming textbooks.”

    2) The court, refusing to satisfy the requirements of the Claimant, indicated that “despite the fact that the programs of the Claimant and the Respondent had the same code and an active script, it does not follow from this that the Respondent’s program was revised from the Claimant’s program. Moreover, the Plaintiff did not prove the fact that the program itself was reworked. ”
    At the same time, the plaintiff's requirements initially boiled down to the fact that the Respondent allegedly copied the program, but in the appeal, the Claimant for some reason already stated that the program was processed. Apparently confused in the definitions (or realized the initial mistake) ...

    So what was the main mistake that the plaintiff made, and how could it be avoided?


    What actions should the plaintiff have previously taken?
    - Prove the exclusive rights to the program.

    The plaintiff stated that he is the copyright holder of the program "Interactive calculator of calculating the cost of work", referring to the certificate of state registration of the computer program from Rospatent. However, such evidence is essentially a “philkina letter” - it has no legal value, as we have already warnedearlier. According to general rules, the registration of a computer program in Rospatent has evidential value only about the fact of the existence of a particular object at the time of registration and about its author. That is, if your name is indicated in the certificate as the copyright holder, this circumstance does not confirm the fact that you are one.
    Rospatent does not check the declared programs for eligibility criteria. And the registered “something” may not be a computer program at all, and the author may be an impostor at all. A vivid and well-known example, when Anton Sergo registered Windows Vista in his name in order to show the “features” of our Russian legislation.

    How to prove?
    Having a properly executed documents - agreement contract / order with the author and developer of the parties signed the act of transfer and acceptance of works and the act of transfer of the exclusive rights to the program (project of this contract with the applications we also discussed all the world Habra).

    What evidence is needed to get rid of the pressure of software trolls?


    During the process, the Claimant insisted that it was the Defendant who had to prove the legitimacy of using the Program. And this is the second, and more significant, mistake of the Claimant.

    The burden of proof
    It was the Claimant who had to prove the fact of the use of the specified program by the Respondent, suing to ban the use of the computer program. However, proper evidence that the Respondent's program was copied or processed directly from the Claimant's program was not submitted to the court. Consequently, the plaintiff did not prove the circumstances referred to in his claims.

    To summarize :


    Russian law is very multifaceted - as the famous saying goes: the law that draws: where it turned, it turned out.
    In this situation, the Respondent (with the help of lawyers) turned the law in the right direction: gathered all the facts together, built a clear position and thus avoided falling into the troll's tricky trap.

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