Judging the Internet

By Dongtao Li, LL.M., Judge of The People’s Court of Haidian District, Beijing, China.
(Posted on August 31, 2011.)

During my lecture on August 16, 2011 at the John Marshall Law School in Chicago, IL USA, I used the following 11 cases in reverse chronological order to illustrate the copyright infringement activities as a result of the Internet in China. In sum, these cases are a sampling of how we, Chinese judges, systematically apply the laws and find copyright infringements.

No law is perfect and Chinese copyright law is no exception. However, our judgment is not clouded by the advancement of technology.

2011 Baidu Wenku: National Medical Examination Center v. Baidu

Baidu is a leader in online search engine provider in China and maintains a Wenku cooperative platform, an online document sharing service. Registered users’ contribution would be awarded in a credit point system. If a registered user wanted to download some files, he should upload something in turn for getting enough credits for downloading other files.

The plaintiff brought this suit against Baidu because some of the plaintiff’s Doctor’s Qualification Examination questions were made available in the Wenku without the plaintiff’s consent.

Baidu first argued that the content in question was all uploaded by netizens, it was only a harbor for such materials, not responsible for everything it hosted.

However, after evidence presented in court, Baidu finally admitted copyright infringement was established when it allowed some copyrightable questions of the plaintiff’s Doctor’s Qualification Examination to be available online without the plaintiff’s prior approval.

In the end, the plaintiff and the defendant signed a mediated agreement and the plaintiff withdrew the suit.

2010 Illegal/pirated copy sale case:

The plaintiff is a Chinese author and copyright owner of 2 books.

The defendant is DocIn.com Inc., an Internet company offering “online file sharing service”.

The plaintiff has never authorized the defendant to make his books available for free download or for purchase.

The plaintiff sued the defendant for copyright infringement because anyone could pay the defendant and download his 2 books at the defendant’s website.

In addition, according to the defendant’s Online Registration Terms and Conditions, it would review any file uploaded by any of its registered users and, for every download, collects 50% of the payment as management fees.

The defendant argued that copyright infringement was not established because it was only offering online file sharing service and had deleted the 2 books that uploaded by a user.

The court held copyright infringement was established because the defendant was aware of the presence of infringing material and received a financial benefit directly attributable to the infringing activity.

2009 Online TV

The Plaintiff is a film company owning the copyright of a TV series, and the defendant is an .com company.

The plaintiff sued the defendant for copyright infringement for broadcasting the TV series on the website www.lianbo.tv without plaintiff's permission.

The Defendant argued that it did not infringe plaintiff's copyright, because it didn’t own the domain name lianbo.tv and have any relations with the website www.lianbo.tv.

During the court hearing, an important fact was discovered that the registrant of the domain name lianbo.tv was a Shenzhen company, but the defendant paid the registration fees of this domain name.

The court held that the copyright infringement was established and the defendant was the infringer.

2008 Network Calculator Software

The plaintiff is a software company. The defendant is an Internet Service Provider.

In 2003, the plaintiff licensed the defendant to use its calculator software for 5 years and the licensing fees would be calculated according to the number of the defendant’s users, up to 140,000 online.

In 2008 the plaintiff sued the defendant for copyright infringement because the defendant had over 140,000 online users and it continued to use plaintiff’s calculator software.

The defendant argued that the copyright infringement was not established because it used a third party’s software, the plaintiff’s software had been replaced.

The court held that copyright infringement was established because the defendant didn’t bring enough evidence to prove the plaintiff’s software had been replaced by the third party’s software, such as the relevant source code and developing documents.

2007 Digital Map

The plaintiff is NavInfo Co., Ldt, the first Chinese company engaged in manufacturing and selling China navigable maps to 10 global major auto manufacturers, such as Toyota all series.

The defendant is a Shen Zhen company also selling navigable maps.

The plaintiff sued the defendant for copyright infringement because there were numerous contents in the defendant’s map that are identical to plaintiff’s digital maps.

Unbeknown to the defendant, some of the identical contents were copyright traps designed by the plaintiff.

The defendant argued that the copyright infringement was not established because it created the maps independently, but failed to explain why the copyright traps existed in its maps.

The court held that the copyright infringement was established.

2006 Coral QQ

The plaintiff is Tencent Technology (Shen Zhen) Co. Ltd., the maker of QQ chat software (hereinafter “QQ”). The defendant is a computer teacher.

The plaintiff sued the defendant for copyright infringement because the defendant developed a software (coral QQ) hacked version of QQ that modified the plaintiff’s QQ chat software capable of blocking advertisements that came with the genuine QQ and replacing with his own profit-making advertisements and spam from a number of other Internet companies.

The court held that copyright infringement was established.

2005 Search engine 2: Busheng v. Baidu

The plaintiff sued the defendant for copyright infringement because Baidu offered a music download service on its website for 46 songs that copyrights owned by the plaintiff.

The defendant argued that it was a provider of search service; it provides search results automatically for internet users’ inquiry and usage and did not provide download service for the 46 songs in question, it did not manually choose the links and pages or control the search result.

The court held that the plaintiff was the copyright owner of 34 songs in this case and Baidu was the copyright infringer because:

When the music file began to download, a pop-up window indicating that the MP3 file came from mp3.baidu.com shows up, that meant the pirated copies of 34 songs were maintained on the Baidu’s system.

If Baidu denied this, it should have brought evidence to prove how and why it had modified the communication of the pirated files.

In the court hearing of the first instance, Baidu did nothing about this.

2002 Digital library

The plaintiff is a law professor.

The defendant is a company operating a website in the name of digital library for collecting and publishing other's works online, including the plaintiff’s 3 books. Users could download the full copies by paying some reading fees. The plaintiff sued the defendant for copyright infringement.

The defendant argued that the copyright infringement was not established because it was basically a non-profit organization and the establishment of such a digital library was to meet the public needs in the age of Internet.

The court determined that the digital library was different from a traditional paper-based library and held that the copyright infringement was established because the defendant was not a non-profit public library and what it did was outside the expectation and authorization of the plaintiff.

2001 Search engine

The plaintiff is a poet.

The defendant is a website offering free Internet key word search service.

The plaintiff sued the defendant for copyright infringement because he specified the key words “his name * the title of his book” using the search engine at the defendant’s website and found his book had been uploaded onto the website of a third party.

The plaintiff sued the defendant for copyright infringement.

The defendant argued that the copyright infringement was not established.

The court held that the copyright infringement was not established.

2000 The same mistakes: independent creation

The plaintiff and the defendant are .com companies.

The plaintiff sued the defendant for copyright infringement for providing almost the same information (including the same mistakes) of the plaintiff’s website.

The defendant denied the copyright infringement but failed to provide any evidence to explain the existence of the mistakes.

The court held that the copyright infringement was established.

1999 Personal homepage: problem of anonymity

The plaintiff was a computer engineer.

The defendant was a newspaper.

The plaintiff sued the defendant for copyright infringement for publishing his article in its newspaper with some advertisements.

The article was first published on a personal homepage with the different owner’s name.

The defendant argued that since the plaintiff could not prove his authorship, the copyright infringement was not established. In the court hearing, the plaintiff demonstrated that he could modify the password of the personal homepage as well as upload and delete files.

Then the defendant admitted the plaintiff was copyright owner.

The court held that the copyright infringement was established.