Have not heard of the "software trolls"? We are faced with such a case in practice and want to share experiences on how to counter them. On a specific case, which has already become the subject of litigation in two court instances, we want not only to tell the practical aspects of protection, but we will try to dig deeper and touch on the theoretical issues of protecting software rights.

The essence of the matter

Parties

The plaintiff is an individual entrepreneur, the copyright holder of a computer program with the straightforward name "Interactive Calculator for the Calculation of the Cost of Work" for the installation of interior doors.
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The respondent is an individual entrepreneur engaged in a similar activity, on the site of which an interactive calculator is also posted.

Requirements

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

Justification

In support of its claims, the Claimant indicated that “the program posted on the Respondent’s website completely repeats the interactive calculator, of which he is the copyright holder on the basis of the computer program registration certificate issued by Rospatent”.
The plaintiff walked the beaten path and was confident in the result ...

Here it is worth paying attention to the fact that a year earlier, the same Plaintiff won the process in a similar case, in a court of general jurisdiction - in the Istra City Court. The amount of recoverable compensation was the same - 400,000 rubles, but later the judicial board in civil cases of the Moscow Regional Court annulled the decision of the lower court and reduced the amount of compensation to 100,000 rubles . Which is also quite 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 declare claims against anyone who has a similar calculator on the 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 incorporated in the program of the Plaintiff do not possess any non-standard or original designs ”. The conclusion of the expert in the case states: "All operations are performed as standard, and all the techniques used are repeatedly described in publicly available web-programming textbooks."

2) The Court, denying the Claimant’s claims, indicated that “although the Plaintiff’s and the Defendant’s programs had the same code and active script, it does not follow that the Defendant’s program was revised from the Plaintiff’s program. Moreover, the Claimant did not prove the fact that the program was processed. ”
At the same time, the Claimant’s requirements initially boiled down to the fact that the Defendant allegedly copied the program, but for some reason, in the appeal complaint, the Claimant stated that the program was being processed. Apparently, he got confused in the definitions (or he realized the initial mistake) ...

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

What actions should Claimant have previously taken?
- Prove the existence of exclusive rights to the program.

The plaintiff stated that he is the copyright holder of the program “Interactive Calculator of the Cost of Work”, referring to the certificate of state registration of the computer program from Rospatent. However, such evidence is essentially a “filing certificate” - it has no entitlement value, which we have already warned about earlier. According to the general rules, registration of a computer program with Rospatent has evidentiary value only on the fact of the existence of a particular object at the time of registration and on 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 the eligibility criteria. And the registered “something” may not be a computer program at all, and the author may be an impostor at all. A bright and well-known example when Anton Sergo registered Windows Vista in his own name with the goal of showing the “features” of our Russian legislation.

How to prove?
The presence of properly executed documents - the contract / author's order with the developer and the act of acceptance and transfer of work signed by the parties and the act of transferring exclusive rights to the program (we also discussed the draft of such a contract with attachments with the world of Habr).

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

During the process, the Claimant insisted that it was the Respondent that had to prove the legality of using the Program. And this is the second and most weighty mistake of the Claimant.

Burden of proof
It was the Plaintiff who had to prove the fact of using the said program by the Defendant by suing to prohibit the use of the computer program. However, proper evidence that the Respondent’s program was copied or processed directly from the Complainant’s program was not submitted to the court. Therefore, the Claimant did not prove the circumstances to which he referred in his claims.

Summing up :

Russian law is very multifaceted - as they say in the well-known proverb: the law that the tongue: where it turned, it went there.
In this situation, the Defendant (with the help of lawyers) turned the law in the right direction: put together all the facts, built a clear position and thus avoided falling into the tricky trap of trolls.