licensing european-union
What is considered sufficient evidence to prove the usage of unlicenced software?
<p>It is well known that some software products "call home" to inform their distributors how the software is used and whether it conforms to their licensing terms. </p>

<p>When someone pirates that software, this method might be used by the copyright holder to gather information about the user, and send the user a warning/threatening letter about the fact, and ask for payment, threatening legal action in case of non-compliance.</p>

<p>However, <strong>what is considered sufficient evidence for that legal action to have any standing at all?</strong> Would the word of the copyright holder (and their server logs, which in theory could be faked) be enough to prosecute the supposed copyright infringement?</p>

<p>My misunderstanding might come from the problem of what this evidence consists of. It is just a message sent by a software to their server. It's just data somewhere on a machine, under full control of the copyright owner.</p>

<p><strong>A)</strong> Is the copyright owner implicitly believed? In this case it would be easy for such a company to go rogue, and make up copyright claims. For example, they might allow a free (as in beer) software to be downloaded, but having an expensive, non-free software too. The user installs the free one, it "phones home" with information to identify the user with, they edit the logs, and sue the user for using the non-free version.</p>

<p><strong>B)</strong> If the data gathered by the copyright owner is not implicitly believed, then how can they press their claim if the user denies everything? By the time they obtain a warrant and show up with the police to search the premises of the supposed pirate, the evidence might have long since been destroyed. (and usually it's in a different country, making the process even more difficult and expensive)</p>

<p>If it's (A), how are users protected from frivolous lawsuits? If it's (B), then how can copyright owners exercise any of their rights? I would guess it's mostly (B), and the copyright owners just scare users into paying, and if a users refuses, there is not much they can do against him, besides threatening to start a lengthy and expensive lawsuit which the copyright owners have no real hope of winning, but would be so costly and time-consuming for the user (especially if the user is a private person or a much smaller company than the copyright holder) that he rather pays than to be dragged into it.</p>

<p>Is my understanding correct, is this how it works? The copyright holder has little to no chance of winning, but proposes a settlement of a few hundred or few thousand $, and threatens a lengthy legal process for maybe millions if not complied, and the users are scared of that lengthy process and they rather pay the smaller sum instead of going for the very low risk of having to pay millions in legal fees?</p>

<h2>Starting with generalities ...</h2>

<p>Anyone can bring a civil case against anyone else providing they have <a href="https://en.wikipedia.org/wiki/Standing_(law)" rel="nofollow noreferrer">standing</a>. At this point the merits of the case do not matter - all the plaintiff is doing is making an allegation that the defendant has caused them harm. For this the evidence need only demonstrate that the defendant has a case to answer.</p>

<p>If the defendant intends to defend the case then the plaintiff will set out their version of the facts and the law and provide evidence to support that version. The defendant will set out their version of the facts and the law and provide evidence that supports their version. Both parties will also attempt to demonstrate that their opponent's case is a crock of s*%t: that the evidence is inadmissible, that the admitted evidence doesn't support the facts alleged, that the law isn't as the other party says etc.</p>

<p>There are specific judicial procedures in each jurisdiction that dictate how this all happens.</p>

<p>If it is clear on the face of it that the plaintiff's case <em>is</em> a crock of s*%t the defendant will file a motion to dismiss and, if the court agrees, that's the end of it.</p>

<p>If the trial proceeds to completion then the trier of fact (jury or judge as applicable) will decide what weight to give the evidence presented and decide on the <a href="https://en.wikipedia.org/wiki/Burden_of_proof_(law)#Preponderance_of_the_evidence" rel="nofollow noreferrer">Preponderance of the Evidence</a> (Balance of Probabilities) if the plaintiff has proved their case. If so, the plaintiff will get (some of) what they asked for.</p>

<h2>Moving to specifics ...</h2>

<p>First, while copyright violation is a crime and <em>can</em> be <em>prosecuted</em> by the state, that would be extremely unlikely on the facts stated. Criminal copyright violation involves copying and distribution on a commercial scale.</p>

<p>What we are talking about is the plaintiff <em>suing</em> (not prosecuting) for violation.</p>

<p>From the facts stated, they have standing and the defendant has a <em><a href="https://en.wikipedia.org/wiki/Prima_facie" rel="nofollow noreferrer">prima facie</a></em> case to answer - that's enough to start legal proceedings.</p>

<p>In such proceedings the defendant is free to attack the admissibility or veracity of the plaintiff's evidence. If it is inadmissible the case will likely collapse. If it is admitted then the trier of fact will decide if it is "good" evidence and if the overall weight of evidence meets the burden of proof.</p>

<p>Far A) - the defendant would prevail if they could demonstrate that they only ever used the free version within their terms of the licence.</p>

<p>For B) - destroying evidence needed for an active case is a serious crime. Along with the summons it is likely that the defendant would be served with a subpoena to deliver up the relevant evidence to the court. As there is no criminal investigation/prosecution police/search warrants are irrelevant.</p>

<p>A lawyer is an officer of the court and is <em>not allowed</em> to start a legal action that they do not believe has a reasonable prospect of success - they can expose themselves to professional sanctions if they do. That said, frivolous lawsuits are launched from time to time and a defendant just has to deal with them - either through the court or by making a commercial decision to pay. Courts have the power to declare people who abuse the process <a href="https://en.wikipedia.org/wiki/Vexatious_litigation" rel="nofollow noreferrer">vexatious litigants</a> and such people must get the court's permission before they can start a suit - for <a href="http://www.smh.com.au/nsw/vito-zepinic-declared-vexatious-litigant-after-17-failed-legal-actions-20170612-gwpfxi.html" rel="nofollow noreferrer">example</a>.</p>
