Copyright Protection: Entering the safe harbor?

Entering the safe harbor?

 

Li Dongtao

The Facts

This is a 2009 case.

The plaintiff is a software company and entitled to the copyright of the online game ARCHOR.

The defendant is a .com company offering search engine service.

On June 28th 2008, the plaintiff specified the key word “ARCHOR” by using the search engine at the defendant’s website and found lots of websites offering the decrypted ARCHOR game. 

On July 28th 2008, the plaintiff sent a written letter to the defendant through a mail delivery.

 

In the letter, the plaintiff:

  1. claimed lots of websites offering the infringed ARCHOR game online by searching the keyword “ARCHOR” at the defendant’s search engine;
  2. asked the defendant to delete relevant links in 5 working days after receiving the letter.

 

The plaintiff’s notification includes the following:

  1. The physical signature of the plaintiff’s legal representative and the seal of the plaintiff;
  2. Identification of the ARCHOR game that is claimed to have been infringed;
  3. Identification of the websites that are claimed to be infringing and that access to which are to be disabled, including concrete URLs(web addresses)reasonably sufficient to permit the defendant to locate the material, such as www.39my.com.
  4. The plaintiff’s contacting information, including the address, telephone number and email address, etc., reasonably sufficient to permit the defendant to contact the plaintiff;
  5. A statement that the plaintiff has a good faith belief that the ARCHOR software at those websites is the pirated and the information in the notification is accurate;otherwise, the plaintiff would take any legal penalties.

 

On August 1st 2008, the defendant received the letter.

On September 10th 2008, the plaintiff found the defendant did nothing after receiving the warning letter.

Then, the plaintiff sent the second letter to the defendant, the content in the letter was the same as that of the first.

The defendant received the letter 3 days later.

A month later, the plaintiff found the defendant still did nothing

 

The plaintiff sued the defendant for copyright infringement. 

Then the defendant deleted all of links according to the plaintiff’s letters as soon as he got the message.

During the court hearing, the defendant argued that the copyright infringement was not established because some URLs in the plaintiff’s letters were not accurate.

For example, www.39my.com is an URL of a homepage, not the concrete address where the pirated ARCHOR game was being uploaded, so he couldn’t delete this link listed in the plaintiff’s letters.

  

Opinion

The court held that the defendant infringed the plaintiff’s copyright because:

did delete links to these URLs after the plaintiff brought the suit to court and didn’t bring any evidence to seek clarification of any unclear aspects in the plaintiff’s letters;

  1. The plaintiff is the copyright owner of the ARCHOR game.
  2. The defendant argued that some URLs listed in the letters from the plaintiff were not accurate, but it

So this argument should not be supported.

  1. The defendant did nothing according to the plaintiff’s letters in time, the fault is obvious. In this way, the defendant infringed the plaintiff’s copyright and should take liabilities.

 

Notes

  1. Evidence

The defendant’s argument is strange.

The defendant argued that www.39my.com is an URL of a homepage, not the concrete address where the pirated ARCHOR game was being uploaded, so he couldn’t delete this link listed in the plaintiff’s letters.

According to Article 64.1of the Civil Procedure Law of PRC (1991), a party is obliged to bring evidence in support of its own propositions.

Both the plaintiff and the defendant are parties in a case and obliged to bring evidence in support of its own propositions.

The defendant is not far away from the Facts.

In this case, the defendant should prove whether there were a decrypted ARCHOR game or not in the www.39my.com before it deleted this link.

The defendant must give a clear answer.

 

  1. Homepage

A webpage is a document, typically written in plain text interspersed with formatting instructions of Hypertext Markup Language (HTML).

A website is a group of connected pages on the World Wide Web containing information on a particular subject, regarded as a single entity, usually maintained by one person or organization.

Homepage is the first page on a WWW website that act as the starting point for navigation, also called the front page by analogy with newspapers.

For the purpose of attracting visitors, a website may put some hot topics or contents (such as a visual display that is often visited) at a proper place in the homepage.

In this case, even the www.39my.com is a homepage, why not a popular game be uploaded onto it?

There are not any technical obstacles.

 

  1. URL

The pages of a website can usually be accessed from a simple Uniform Resource Locator (URL) called the web address.

An Internet address is comprised of strings of digits delimited by periods, indicating the network, sub-network, and local address, reading from left to right.

It’s long and hard to remember for human users.

For convenience, humans use domain names(more easily memorable names)instead.

For example, the URL of my column online is http://59.151.93.208/.

It may be written as www.miitip.com/li.html.

It may also be written as www.lidongtao.cn, if I use the domain name of mine.

No matter how the URL is written, it is irrelevant to the content in this page.

In short, it isn’t important to decide whether www.39my.com is a homepage or not.