In cases of copyright infringement involving pirated software, the primary challenge for the copyright owner is to demonstrate that the infringer has installed and utilized the pirated software within their business operations. However, since the software is typically installed on servers or computers that are under the infringer's control and located in private business premises, it can be quite difficult for the copyright owner to access these locations for forensic analysis.

Judicial practices in China have shown a growing acceptance among courts for the use of remote forensic methods, such as telnet, to gather evidence in cases of software piracy. 

Evidence Collection Methods in Pirated Software Cases

In practice, one of the main strategies employed in software copyright infringement cases is to file an application with the court, requesting that a judge visit the infringer's premises to secure evidence and gather crucial information regarding the infringement. The Guidelines for Hearing Infringement of Copyright Cases issued by the Beijing High People's Court, effective April 20, 2018, state that "remote forensic methods can also be utilized in end-user cases," and that any evidence collected through these methods must comply with the Civil Procedure Law. Furthermore, the 2021 Guidelines on Rules of Evidence for Civil Litigation on Intellectual Property reiterate the potential for remote forensics to be employed based on the specific circumstances of the case, indicating judicial approval for this approach in software infringement matters.

Utilization of Remote Forensics in Pirated Software Cases

A review of publicly reported cases reveals that for certain types of software, it is possible to gather admissible evidence of infringement through remote forensics conducted in the presence of a notary. This is particularly applicable to software designed for remote access, such as server-side mail server software and FTP software, which allows users to connect their computers to servers running the FTP protocol. By using a common computer command known as the Telnet command, it is feasible to remotely check if such software is installed on a web server. If a computer connected to the internet inputs a command along with a URL, the web server may respond with the name of the software if it is indeed installed. If the website owner cannot demonstrate that their use of the software is authorized by the rights holder, it may be inferred that they have installed pirated software.

Technical Limitations of the Telnet Forensic Method

Despite its utility, the Telnet forensic method has certain technical limitations. The feedback received only indicates the name and version of the software, without revealing the program code, making it difficult to ascertain whether the suspected software is identical to or substantially similar to the protected software. Additionally, the server owner may alter software settings, leading to discrepancies between the feedback and the actual software installed.

As a result of these limitations, courts have varied in their acceptance of evidence obtained through Telnet command remote forensics.

Evolving Perspectives of the Guangdong High People's Court in Pirated Software Cases

For instance, in a copyright infringement dispute between Shenzhen Lanke Technology Co., Ltd. and LeiRuo Software Company, the Guangdong High People's Court determined that the Telnet command remote forensics for FTP software lacked certainty and uniqueness. The court concluded that the feedback alone could not confirm whether the defendant had installed or used the plaintiff's FTP software, nor could it establish whether the defendant's software was a pirated version of the plaintiff's copyrighted software. Consequently, the court did not support the plaintiff's claims. However, in a subsequent retrial involving Otonm Technology Co., Ltd. and Shenzhen Guanzhi Industrial Co., Ltd., the court revised its stance, acknowledging that while the feedback from Telnet detection may not provide absolute certainty, a high probability could suffice for the plaintiff to meet their burden of proof. Since the defendant could not demonstrate lawful use of the genuine software, the court upheld the plaintiff's assertion of copyright infringement.

Remote Forensics via Telnet in Pirated Software Cases

Additionally, rights owners may obtain information about pirated software through device feedback mechanisms embedded within the software itself. This feature allows the software to automatically relay information about the device on which it is installed back to the rights holder, aiding in the tracking of pirated software. 

This functionality effectively creates a "back door" in the software, enabling the rights owner to access user systems. While this may facilitate the collection of information regarding users of pirated software, the legality of such forensic methods raises important questions, particularly since users are often unaware of the existence of this "back door." As technology continues to evolve, we can anticipate the emergence of new models for conducting remote forensics in cases of software piracy.