By Albert Chen
Han Han, Baidu, Baidu Wenku, apology, Safe Harbor Principle, information storage space, ISP, Internet Service Provider, prior examination, delete infringing contents, delete classification, quick channel, DNA comparison technology, prevent and stop the infringement, Baidu claim, more rigorous due diligence duty, bona fide and no misfeasance,
By news reports, Beijing Haidian People’s Court judged the copyright infringements filed by Han Han and other Chinese writers against Baidu (NASDAQ: BIDU) Wenku, an online document sharing port, in recent. Among all the 14 lawsuits, 7 are supported the claims of compensation as $ 400 for each work involved, yet refuse the claims of shut-down the port and apology. As to the rest 7 lawsuits, Baidu gain an overwhelming victory.
For the compensated 7 lawsuits, as noticed, Baidu also argue for the Safe Harbor Principle for liability exemption. And by Article 13 of Baidu Wenku User Agreement:
“Baidu Wenku is an open platform for users’ online document sharing, and an online storage space. All the documents uploaded and stored are from user’s origin, on which Baidu will make no edition or modification.”
With such a definition, Baidu Wenku could also claim free of liability with the reference to the Safe Harbor Rule.
But why Baidu shall still be judged liable to the infringement? Our analysis is as follows:
I. Claims of Baidu in the lawsuit
We conclude Baidu’s four main claims as follows:
1. Baidu, as an ISP for online storage, takes no obligation to prior examination, but shall delete any infringing contents on the notice of right holder, whereas it could be exempted from any liability of the infringement.
2. Baidu has lauched a separate channel for quick complaint and report against infringement, yet it has seen no use of such channel by Han Han in the event.
3. Baidu deleted the classification of “literature work” in September of 2011, which hinders the infringement from the very origin.
4. Baidu has developed and been upgrading “DNA comparing technology”, that is kind of measures to prevent and isolate the infringement not demanded but actively motivated by Baidu.
Among such four claims, the 1st one states the boundary of ISP’s obligation; 2nd one explains how it acts to facilitate the claim by right owner; and the last 2 points focus on its efforts to prevent and correct the infringement beside the demands by law.
II. Defects of Baidu’s claims
It is obvious that, with such four claims, Baidu would like to underline its status as ISP, as well as to gain the favor and support from the judge. Surely, all these aim at the liability exemption. After check on the claims, in my opinions, they are with the following defects:
1. Baidu shall be aware of the infringement, thus not qualified in subject for the principle application
By Section 22.3 of Protection Regulations on Information Communication by Networks, the claim of duty free shall be judged on subject first:
“Having not known and having no justified reason to know that the works, performances, or audio-visual recordings provided by the service object have infringed upon other’s right;”
But according to the currently available information, Han Han have negotiated with Baidu for the settlement on infringement, which brings the reasoning that Baidu shall be fully aware of the infringement, and the opinions of the author on the works communication. With these, Baidu shall be equipped with a higher due diligence duty.
Due to this reasoning, the judge stated in the decision that:
“For the infringement noticeable for fair reasons, Baidu shall, besides the due diligence duty for normal infringing document, actively fulfill a higher due diligence duty, which, compared with the measures taken by Baidu and its incomplete technology, demands a more formalized operation of Wenku for an effective protection on the interests of copy right owners. ”
The discussion also explains the other aspect of the Safe Harbor Principle, namely on detention of the infringement, the ISP shall actively take measures to delete them, rather than waiting for the report and instruction of the right owner.
2. The precaution technological measures could not replace the statutory deletion on the infringement
To Baidu’s point, it not only deleted the infringement-aiding classification, but also introduced a channel for infringement complaint. The purpose for the explanation is to restore itself a positive image and tend to influence the judgment by the court. Yet, in actual, the precautious measures could not be the replacement to the infringement deletion. Anyway, till Han Han notarized the infringing page, Baidu took no measures to correct its error.
What shall be more attentive is, the court also criticized Baidu’s relying on technology. To the court’s discretion, to make the protection on copyright be subject to the awareness of netizens and incomplete technology, has made Wenku be a den of infringement, and not match the abundant resources of information and infringement prevention measures. That shall mainly blame Baidu’s yet completed operation method.
3. By the Tort Liability Law, Baidu shall take the joint liability to the infringement
According to Paragraph 3 of Article 36 in Tort Liability Law:
“Where an Internet service provider knows that a network user is infringing upon a civil right or interest of another person through its network services, and fails to take necessary measures, it shall be jointly and severally liable for any additional harm with the network user.”
That is to say, all the ISPs, with Baidu included, shall take the full liability to infringement instead of the previously judged liability in aiding infringement. That also forces the ISP to take a higher due diligence duty.
III. What gains from the case?
To my understanding, the established case is guiding in the future handling to the similar disputes:
First, the model of user generated content, which was under the cover of Safe Harbor Principle, is facing with a great challenge. And with the decision in the case, document sharing platform like Baidu Wenku, Doc88 or Sina iAsk, shall be warned and educated for a more formalized operation.
Second, the judge demands a more rigorous due diligence duty to the ISP. Despite the duty free for the Safe Harbor Principle, the case also emphasizes ISP shall delete any infringing contents on its imitativeness on the awareness of the infringement. In the meantime, with the joint liability in Tort Liability Law, ISP shall take a more rigorous duty on infringement detention and deletion.
Last, the technological precautious measure could not replace the demands of infringement deletion. And to the measures themselves, it shall be conducted actively rather than on other’s instruction or report.
At all event, the decision in the disputes, again reminds the ISP: the Safe Harbor Principle is not the guarantee for infringement, but an alert for right protection. After all, the principle only protects those ISPs in good faith and with no misfeasance.
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