Judging the Internet: The Experience of a Chinese Judge on Internet-related Copyright Disputes

--Benjamin Liu, Sophie Jiang

China’s internet population, 485 million and counting, exceeds the entire United States population.  Thus, Chinese judges are working at the forefront of copyright disputes in cyberspace.  The Honorable Judge Dongtao Li, a senior judge of the Intellectual Tribunal of the People’s Court for Haidian District, Beijing, PRC, presided over many milestone cases that defined the Chinese jurisprudence on copyright disputes in cyberspace.  Judge Li returned to John Marshall Law School as a visiting scholar and graciously shared his insights on the cases he decided at the Chinese IP Resources Center on August 16, 2011.  Internet based copyright disputes in Judge Li's examples present several reoccurring themes arising out of Internet's anonymity, business complexity, and the rules of Chinese civil litigation procedure.

            The Party's Identity:  The anonymity and vastness of the Internet can make the most mundane issues a challenge.  Several of Judge Li's examples turned on the party's identity.   For example, China's very first Internet copyright dispute turned on Plaintiff's ability to prove that he was the author of an article originally published on personal homepage under a pseudonym.  The Plaintiff met his burden by demonstrating the authority to change the password and to modify the contents of the website.  More problematic is when a defendant denies his identity, such as when a company denied its association with the website containing infringing movies in a 2009 case relating to online TV.  The key evidence was the business records of the domain register showing that the accused company had paid for the domain registration.

            Liability of Multiple Actors: In China as is elsewhere, Internet-related copyright infringement often involve multiple actors including web hosts, end-users, search engines, and so forth.  Several cases required Judge Li to impose liability based on the action among these entities who may or may not have been a party to the litigation.   In 2005, the music publisher Busheng sued Baidu, China's largest search engine, for the copyright infringement of 34 songs.  Baidu conceded that its search engine returns list the songs but argued that it was not responsible for the uploading, downloading and hosting performed by individuals.  Whether Baidu actually hosted or uploaded the songs was a fact question that was not resolved.  Due to the failure to provide proof of third-party hosting, Judge Li construed the missing evidence against Baidu and found infringement.  In a 2008 case, a software developing company sued a website for breach of contract and copyright infringement concerning software it had licensed to the website.  The defendant asserted the defense of independent creation and argued that its software was obtained from a third party instead of the plaintiff.  The defendant could not show any source code or development documents except a licensing agreement from the alleged “third party.” Judge Li concluded that the website failed to meet its burden of showing independent creation and imposed copyright infringement liability.

            The Quantum of Proof: While issues of anonymity and multiplicity is common place for Internet based copyright disputes (witness the sleuth of John Doe actions filed by music publishers in the U.S.), Judge Li highlighted several features of the  Civil Procedure laws and rules of evidence in China that create an entirely different legal context.  Typically parties have the burden of proving their assertions but Chinese litigants lack broad discovery power to obtain the evidence necessary to prove its case.  Instead, its judges retain the discretion to investigate fact matters and instruct parties and non-parties to comply with discovery.  In the pseudonym case, Judge Li directed the plaintiff to perform the website maintenance activities.  In the movie piracy case, Judge Li order the domain registration servicer to provide payment records.  The absence of formal discovery also accentuated the importance of “copyright trap”, where the duplication of idiosyncratic mistakes in the original work are used to prove unauthorized copying.  Thus, in a 2000 case, Judge Li imposed infringement liability based on a typo in the defendant's online hotel and restaurant directory that was identical to a typo in the plaintiff's original compilation.  Later in 2007, copyright traps such as non-existent roads and ramps in a digital navigation map were used to prove infringement.

            The Q&A session drew active questions from the judges, professors and attorneys in attendance.  Prof. William McGrath, who maintains an active copyright and trademark practice, asked about online copyright infringement damages awards.  Judge Li acknowledged the gap in the civil damages between China and the U.S. and lawmakers are unlikely to raise the statutory damage amount.  However, he reminded us that infringement in excess of 500 copies triggers a crime punishable between 3 to 7 years in prison.  Chief Judge Holderman of the Northern District of Illinois took the opportunity to elicit the day-to-day life of a fellow Chinese judge.  Judge Li described his rise from a court clerk, assistant judge, judge, and now senior judge.  With the help of a single clerk, Judge Li manages a docket of about 240 cases a year that covers the gamut of copyright and trademark infringements, unfair competition, trade secret misappropriation, domain name disputes,  and patent licensing cases.  Although Judge Li jokingly equated his senior status to being old, he appeared anything but ready to chaperone the legal development of China's cyberspace in the years to come.