Highlights:Two software developers was sentenced to bear the compensation liability recently in Beijing for the infringing gadgets in Apple App Store. Bridge IP Commentary will introduce you the liabilities Apple may take in such case.
Recently, a case concerning the alleged video infringement in App Store is sentenced by a local Court in Beijing, in which the LeTV Information and Technology (Beijing) Co., Ltd. (the “LeTV”, SZSE: 300104) found a TV series with the right to network dissemination of information reserved by it played on a software available from the App Store and then filed a suit against the two companies developing and operating the software. The first instance’s decision supported the claim of LeTV with the sentence of the compensation of RMB 40,000.
Although the streaming of the infringing work is by the application software from App Store, the Apple was not called to the court. We think, the obligee may consider that since Apple is admitted in U.S.A, to get it involved in the case may make the case more complicated and the efficiency of the hearing may be influenced for the long lasting transnational process service. However, that doesn’t mean the operators of such application stores like Apple should not bear any liability. For the reasons as follow:
I. For the “direct” infringing software, Apple shall take the liability of infringement assistance shall no reasonable examination duty had been fulfilled by it.
The abovementioned “direct” infringing software refers to software containing infringing contents, such as books, magazines and films downloadable from app market.
The software of Apple products are all gained by the users from App Store, which is the only platform serving for Apple terminals with its application program and contents developed and uploaded by the third party, and Apple shares the charge from the users’ payment with the developers. In other words, Apple could only be the online service provider in copyright infringements by China laws, for it’s just the provider rather than the operator of the software.
For a general network service provider, it could be exempted from compensation liability when it deletes the contents uploaded by the third party on the notice of the obligee, and that is the so called “Safe Harbor Rule”. However, this principle does not apply to App Store for the following reasons:
1. App Store strictly reviews all the online applications, although it claims copyright is not the key of such review, however, this could not be its omission on the infringement.
2. App Store shares the profits comes from the infringing software, while the general network providers gain profits indirectly from advertisement or other methods rather than straight from the dissemination of the infringing work. Yet the margin of App Store is directly connected with downloads of the infringing work, which further increases Apple’s obligation of review.
Therefore, according to the Article 23 of the Regulation on the Protection of the Right to Network Dissemination of Information, if the software is obviously or directly infringing, Apple’s misconducts shall constitute “knowing or should have known the infringement of any linked work, performance, audio and visual product”, which could make it bear the joint liability.
II. No liability for Apple on “indirect” infringing software
The “indirect” infringing software refers to the software accessed to get the infringing contents by the users instead of containing them itself. The software involved in the case as cited in the beginning of this article is just kind of mobile video player only streaming the infringing content on the command of clients.
We think the examination duty of Apple will be due once the software in App Store has been reviewed for the legality and safety of its function, and besides that, Apple shall not be demanded to check whether the contents are infringing or not, or to take any liability of the infringement herein emerges. Surely such conclusion shall not be applied to the situation when there are evidences for Apple’s omission after knowing the infringement.
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Copyright reserved by Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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