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Examination and Collection of Network Evidence

Linda Liu & Partners
Network evidence refers to the information obtained from various network terminals. The network evidence, such as commonly used text messages, emails, real-time web pages as well as videos and pictures thereof in daily life, may be used to prove case facts. In intellectual property cases, the network evidence is used relatively wide. For example, in patent invalidation cases, the parties often use the pictures, videos etc. captured from the network to prove that an invention has been disclosed before patent filing, thus losing novelty and patentability. In another example, in copyright infringement cases, the network novel published without permission of the author is both the object of infringement and the network evidence to prove the existence of infringement. As a category of digital evidence, network evidence has become a significant category in the judicial and law enforcement process in intellectual property.
Generally, network evidence is a form of digital data evidence and should be examined according to the relevant laws and regulations of digital data evidence. The laws and regulations of digital data evidences are relatively few and inadequate under the existing system. The laws are mainly reflected in the provisions of digital data evidences prescribed in Article 63(1) (v) of the amended Civil Procedural Law and Article 48(1) (v) of the amended Criminal Procedural Law. According to the above provisions, digital data evidence, including network evidence, as a new form of evidence, has already been introduced to the two procedural laws and is a legal form of evidence. However, there is no specific provision regarding the examination standard of network evidence, means of evidence collection, and notarization and legalization of network evidence. In practice, the authorities usually examine and verify the network evidence according to the general principles of evidence, authenticity, relevance, and legality, to determine whether to accept the evidence.
Network evidence can be collected in different places and spaces from the network, but can be easily altered leaving no trace. Such features make the application of network evidence a relatively disputable issue. How to collect network evidence efficiently and lawfully is an issue that is worthy of attention not only in the intellectual property field, but also in juridical proceedings. This paper will discuss the standard of network evidence from practice, and it can be a reference to the collection of network evidence for intellectual property litigations and other procedures.
I.  Examination of network evidence in practice
1. Examination of authenticity
Authenticity is the most important factor influencing the proof of network evidence. In most cases, the major reason that the network evidence is not accepted is because it loses authenticity due to alteration or other reasons. With regard to the authenticity of network evidence, it can be examined and determined through the manifestation of the network evidence, the internal management mechanism of the network, the relationship between the network and the involved parties, and the formation, storage, transmission, receiving, collection and integrity of the network evidence, in order to confirm whether the network evidence has been altered.
In the copyright infringement dispute case between Hunan Happy Sunshine Interaction Entertainment Media Co., Ltd. (hereafter referred to as “Happy Sunshine”) and Chenzhou Changhong Net Bar (hereafter referred to as “Net Bar”)1, the Plaintiff Happy Sunshine submitted six pieces of evidence to the court in order to prove that the Defendant Net Bar operated a for-profit Video On Demand business providing online services of the involved TV series to users. Among them, the Evidence No.5, the notarial certificate (2010) Xiang Chen Fu Notary No.0532 made by Chenzhou Fucheng Notary Office, proved that the Defendant provided the online service of playing Chinese Ugly Betty (Season 2) without authorization. The Evidence No.6, the print-out of web page information, was used to prove that the Chinese Ugly Betty (Season 2) was premiered on January 12, 2009. The court examined the evidence submitted by the Plaintiff and determined that the Evidence No.5 was authentic and legal and shall be accepted as a basis of verdict. The source of the Evidence No.6 is unclear, so the court disallowed it as the basis. The reason why the Evidence No. 5 was accepted was that it showed that the preservation conducted by Hunan Chenzhou Fucheng Notary Office at the Net Bar on the afternoon of March 24, 2010 was as follows:
1. The notary checked in at the reception of the Net Bar, received the network ticket, turned on a computer chosen at random, input the information on the ticket, and entered the computer desktop.
2. The notary connected the USB disk taken along with the computer, installed and ran the software Camtasia Studio Professional Edition, and recorded the screens of the computer in operation through the software.
3. Clicked the shortcut of WU Zhou Theatre on the desktop, entered the web page, searched Chinese Ugly Betty, clicked and played the episodes 2, 28, 43 and 64 of the Chinese Ugly Betty (Season 2).
4. Stored the screen video in the USB disk, disconnected the disk and returned it to the notary.
Hunan Chenzhou Fucheng Notary Office certified that the compact disk attached to the Notarization was a copy of the screen video and the content accorded with the on-site operation. Hunan Chenzhou Fucheng Notary Office made the Notarization (2010) Xiang Chen Fu Notary No.0532 on May 13, 2010. Through examination, the court determined the Notarization could prove the network evidence is true and effective in source and thereby the evidence was accepted.
In the No.WX15568 Invalidation Decision made by the Patent Reexamination Board (PRB) on November 10, 2010, the applicant requested to invalidate the design  “packing case (ornament)” No. 200930309077.7 which was granted and published on March 10, 2010 by the State Intellectual Property Office (SIPO). In this case, the applicant submitted a piece of notarized network evidence to prove the design had been disclosed on the Yiwu petty commodities group buying site. Through examination, the PRB held that, generally speaking, the network evidence from the websites which are of high credibility is strong in proof. In the case of any divergence of the disclosure time of the internet information, the evidence provided by the irrelevant third party or the network providers. is the address of Yiwu petty commodities group buying site that was used to provide information of commodities and release advertisements. From the content thereof, it is a commercial website which is hardly to be regarded as a website of high credibility from its popularity. And from the purposes and means of releasing information in the website, some merchants who provide commodities or the information providers are able to alter the information of the goods at their own discretion. Thus, the information disclosure time provided by Yiwu petty commodities group buying site was uncertain to some extent. The network evidence was thus disallowed.
From the above two cases, the most important factor influencing the proof of network evidence is the source, either from a subjective perspective to analyze whether there is an interest relationship between the network evidence and the involved parties, or from an objective perspective to analyze the possibility of altering the network evidence. Thus, the network evidence, from irrelevant third parties, technically unalterable or proved unaltered, is more likely to be accepted.
2. Examination of legitimacy
Evidence legitimacy means the forms, collectors, and collecting procedures, etc. of the evidence is legitimate. It should be legitimate both in substantive law and procedure. Network evidence, as a special form of evidence, should comply with the requirement of legitimacy.
As for legitimacy in substantive law, as mentioned above, according to the latest amended Civil Procedural Law and Criminal Procedural Law of China, digital data was introduced as one category of evidence. Network data which falls into the scope of digital date is thus accepted by law as one type of statutory evidence. According to the Some Provisions on Civil Procedural Evidence of the Supreme People’s Court, the involved parties are not obligated to prove the facts that have been proved by effective notarization. With the continuously wide use of network evidence, evidence preservation by way of notarization is used as an efficient way to prevent and solve network disputes. However, there is a lack of laws and regulations to guide network evidence notarization in practice. What “original network evidence” is, how to notarize the original file, and so on are all decided by experience.
As for legitimacy in procedure, usually procedural illegitimacy is rare when it comes to notarized network evidence. However, the network evidence may be illegitimate when its source is uncertain, for example if the computer and network devices are not cleaned up before notarization to ensure no hidden danger of information security, or the notarized web pages are obtained directly from Internet Explorer by entering the address in the address bar instead of a search engine which is of relatively high credibility.
For example, in the appeal of a dispute over infringement of information network dissemination right of works between Beijing Net movie Culture Communication Co., Ltd. and Hainan Jiahe Civil Aviation Hotel Management Co., Ltd.2, the issue of the second instance was whether the limitation of action in this case complies with law. According to Article 28 of Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Copyright, the limitation for actions for copyright infringement is two years, starting from the date when the copyright owner knows or should know the infringing act. As for repeated infringing acts in a case or the infringing act continues when the action is brought, “the date of infringing act” should be interpreted as “the date of the last infringing act”. The disputable date in the case is March 5, 2009. The involved parties disagreed with each other on whether the date should be the starting date of the limitation of action in this case. The court held that whether the date could be the starting date depended on whether the Notarization No. 03469 was able to prove there was an infringing act by Jiahe Company on March 5, 2009. The court found that the room and computer used in the evidence collection and notarization in this case was not under the control of the notaries before notarization, not chosen randomly by the notaries and not distributed randomly by the receptionist of the hotel. Instead, they were under the control of LIU Jinqing, the representative of Wangshang Company, all along. Because a target web page invented technically is able to co-exist with the real network web page, for the notarized network infringement evidence provided by the parties, the court should determine whether the information is from the network or local computer to determine whether to take the notarization as basis of verdict, under the specific situation of the network environment and the evidence and according to the authenticity and integrity standard in digital data examination. The Notarization No. 03469 didn’t record whether the notaries examined the clearness of the computer and the mobile hard disk. Although the Notarization can prove the acts recorded happened before notaries, it is inadequate to prove the acts happened under the network environment. Moreover, although the Notarization No. 03469 indicated the computer in the Room 4009 of Haikou Jiahe Express Hotel can play the involved movies, the play interface doesn’t show the specific website address, the specific infringing web page, and the information such as the links and storage location of the involved movies. Thus, it was unable to exclude the possibility that the involved movies are stored in the hard disk of the computer used in the notarization and the screenshots attached to the Notarization were obtained directly from the hard disk of the computer instead of the network. From this case, the network evidence preserved by notarization must comply with the relevant laws. If the source is uncertain, the network evidence would not be accepted.
3. Examination of relevance
Relevance of network evidence means there is some connection between the content of network evidence and the fact to be proved. In practice, the weakness of evidence in relevance mainly refers to what the evidence is proved is not the case fact but other facts relevant to the case.
In the No.WX1333 Invalidation Decision made by the PRB on May 7, 2009, the applicant requested to invalidate the design “bracket on the wall” No. 200530070012.3 which was granted and published on August 9, 2006 by SIPO on the grounds that the patent had been disclosed on a network before the filing date. During the examination, the applicant submitted a piece of notarized network evidence that showed the goods information was disclosed on the web page on January 13, 2009. The notarization included printouts of web pages (in total, 72 pages) showing the process of searching of the printouts on the network. The PRB held that the network evidence could not be accepted as a basis to determine whether the patent complied with Article 23 of Patent Law, if the notarization of network evidence preservation was conducted later than the filing date of the patent, or there was no relevant information to prove the disclosure time of the evidence.
In the appeal of a dispute over infringement of information network dissemination right of works between Zhang and Shanghai Lang Information Technology Co., Ltd.3, the appellant submitted a piece of supplemental evidence—(2011) Hu Dong Notarization No.14025 in the second instance. The Notarization was a video recording of the process of Zhang entering the Hongshu net and registering as a user by using the computer in Shanghai Dongfang Notary Office on July 1, 2011. The appellant provided the evidence to prove that anyone who wished to register as a user of Hongshu net needed to provide an email address. The appellee made an objection on the relevance of the evidence. The appellee considered the Notarization provided by the appellant only proved that the email address was required in user registrations on July 1, 2011. The user “Mei Yi Ge” who uploaded the involved work was registered on July 9, 2010. Hongshu net had been revised for six times since the first version went online on December 25, 2009. Hongshu net did not require email addresseses from users registered before. The appellee Lang Company provided (2011) Jing Dongfang Inter Civil Notarization No. 5741 as rebuttal evidence in order to its claim. This Notarization is the registration information of “kangushi” and “Jiu Qu You Ming” who were registered as users on the same day as “Mei Yi Ge” was on Hongshu net. The appellant objected to the authenticity, legitimacy and relevance of the evidence. The court of second instance considered the supplemental evidence provided by the appellant Zhang and the appellee Lang and determined they had no relevance to the case fact. The court disallowed the evidence.
From the above two cases, relevance is the premise for network evidence to prove the case facts. Even if the authenticity of network evidence can be proved by notarization or other ways and the legitimacy can be verified by the court through examination, it could not be accepted if it has no relevance to the case fact.
II. Collection of Network Evidence
1. Noteworthy points in collecting network evidence
① Keep the source information of network evidence
Due to the confidentiality and alterability of network evidence, the network evidence alone is insufficient to prove the authenticity, without other supporting evidence. In practice, in order to prove the facts to be proved, the best choice to strengthen the authenticity is notarization. However, the network evidence may still have defects even after notarization according to law. To prove the authenticity and legitimacy of network evidence, the involved parties should pay attention to keeping the materials reflecting the nature, scale, awareness, information management means as well as whether or not the website has an interest relationship with the parties, so as to have those materials and the network evidence form an evidence chain to strengthen the proof of network evidence. For example, the information of the website is certified by the Ministry of Industry and Information Technology and “whois” information of the domain name can indicate the source or background of the website. Keeping such information is helpful to improve the persuasion of the authenticity of network evidence and make the evidence be accepted more easily.
② Choose the website that is of higher credibility
When the network evidence exists in a number of different websites, the parties should try their best to choose the website that is of higher credibility to collect evidence, such as the official websites of state administrative authorities, the official NGO websites which are not easily altered, as well as those which the parties cannot alter and the network evidence itself is hard to be altered. It is better to access these websites through the well-known search engines, such as Baidu or Google. By using manual inputs, the web page is likely to raise questions that it has already been stored in the computer instead of being disclosed on the network. It should be pointed out specifically that when it is uncertain to determine whether the website can be altered, the parties may have the fact that the backend information is not altered and is notarized in order to prove the network evidence is authentic. Moreover, in the determination of authenticity of the network evidence, the evidence may lose objectivity if there is an interest relationship between the website and the involved parties. Thus, network evidence would not be accepted if it was collected from the websites directly or indirectly ran by the involved parties.
③ Shorten the time between notarization and generation of evidence
Because network evidence can easily be altered, both the notarization of evidence after it is generated and the presentation of the evidence in court may cause questions due to the inconsistency of time from the generation of evidence. Thus, once the parties find the network evidence, it is advisable to have them notarized promptly in order to keep the evidence in its original status. In practice, there are circumstances that after the parties preserved the network evidence by notarization, the web pages could not be searched in the court, which is also likely to make the evidence not be accepted. In order to avoid such circumstances, it is advisable to shorten the time between notarization and generation of the network evidence. This may ensure the relevance between the evidence and the facts to be proved.
2. Notarize network evidence scientifically
Notarization system is to testify evidence based on the principle “seeing is believing”. However, this principle is challenged due to the complexity of network evidence. Even the witnessed network evidence may be questioned on authenticity. Thus, the notarization of network evidence is different from that of other evidence in noteworthy points. The parties need to pay attention to the place, methods and so on in the notarization.
① Pay attention to the place and hardware devices in the notarization of network evidence
Based on a number of cases, the network evidence which is collected from the computer controlled by the Notary Office and notarized is easier to be admitted by the adversary and other interested parties and accepted by the court. If it is impossible to collect evidence in the Notary Office and the notarization has to be done outside the Notary Office, the notaries should record the place, time, participants, network connection devices, the way and process of connection in the notarization. They should examine the hard disk environment and confirm the network connection when the notarization is conducted outside the Notary Office. The purpose of the above acts is to avoid the alteration of the computer outside the Notary Office by the notarization applicant or other operations, which may influence the notarization conducted according to law.
② Collect evidence without defect
When having network evidence notarized, the notarization applicant should provide detailed operation process in writing in advance. The notaries should examine the process carefully. If the notaries are not sure of the content of the preservation and the operation process, they should consult professionals and engage the professionals in the evidence collection if necessary. When collecting evidence, the collector should operate in accordance with the process planed in advance. The notaries should record every step of the operation in details in the on-site operation, and video the process if necessary.
③ Preserve network evidences according to their forms
Network evidence is a kind of digital data. Except having features of common evidence, it also has multiplicity and alterability features. Usually, the network evidence is represented in the following forms: web pages, pictures, programs and multimedia.
As for the common web pages and pictures, usually they can be preserved through real-time printing. This preservation is relatively easy in operation with very few intermediate links involved. The preservation can be achieved by using the print function in the browser directly. What the applicant should pay attention to is to set up an appropriate parameter for the printer before printing in order to have the web page printed completely. The web pages can be reduced in scale before printing, if necessary. As for web pages with flash or other inserts, they can be preserved by way of screen shots, recording the web page by using a third party software or shooting the whole computer operation process on-site, which is helpful to reflect and preserve the status of the web pages to the most degree. For programs and multimedia, they are usually preserved by copying, that is, to copy the original data in physical storage mediums (such as mobile hard disk or optical disk) for preservation. When using a mobile hard disk, USB disk and so on, the operator should “clean” the device in advance, that is, to format the storage medium or operate “anti-virus” software in order to guarantee the authenticity of the data to be stored and the uniqueness of the source of date. The stored data should be reopened, examined and detected again for viruses. As for the digital data stored in the optical disks, the operator should choose the storage medium (CD or DVD) based on the form and size of the data. This way is economical from one aspect and can avoid technical barriers. For example, it is advisable to use a DVD to copy and store videos and other multimedia data to avoid the station that the data cannot be read. After evidence is recorded in the optical disk, the disk should be sealed promptly. The notaries should make a full and correct record for the process of preserving evidence, including the methods of preservation, type of storage devices, cleanness examination of electronic devices, time of downloading files, time of copying the disk, number of the copies of the disk and so on. During the notarization, the notaries should also record the circumstances such as power cut, interruption of network signal, and interruption of downloading, etc.
With the development of computer technology and network, network evidence is becoming more and more important. Network evidence is very likely to become a key point to decide the success or failure of a case.
From a number of patent invalidation cases and IPR dispute lawsuits where network evidence was widely used, our firm has accumulated rich experience in collecting network evidence.
This paper is a summary of the network evidence examination standard and the noteworthy points in collection based on our experience. It would be our great honor if this can be of any reference to you.
We are very pleased to provide service to every client who wishes to use network evidence based on our experience. Should you have any questions or requirements, please feel free to contact us at any time.
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