Category Archives: Non-litigation

Could Toutiao.com Achieve a Settlement with Traditional Media?

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(By You Yunting) Toutiao and its investors would never have thought that a bomb from traditional media would come close on the heels of the Toutiao announcement that it had secured $100 million USD of Series C financing at a valuation of $500 million USD. The Beijing News made a comment “Toutiao.com: Whose headlines are they?” to attack the copyright infringement of Toutiao.com. Afterwards, Toutiao instantly replied, categorically denying infringement. However, just as the trees may wish to be still, the wind doesn’t stop, Toutiao may prefer the criticism to stop, but the traditional media will not subside. Soon, the copyright infringement of Toutiao soon became a public focus, being the subject of a variety of media’s collective enforcement on the grounds of copyright infringement.

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Is It Legitimate for Toutiao.com to Transcode News Websites for Mobile Users?

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(By You Yunting) According to news, Toutiao, a personalized news app, announced that Toutiao has secured 100 million dollar of Series C financing at a valuation of 500 million dollar. Afterwards, the Beijing News, a traditional paper news, soon posted a comment that Toutiao’s contents are suspected of copyright infringement. However, Toutiao instantly replied in denying infringement. In today’s post, we would like to analyze the infringement issues of Toutiao from the legal prospective.

First is to introduce the push approach of Toutiao. When visiting its official website on a computer, it is found to be relatively regulated, similar with the news channel of Baidu and Google, that every recommended news had an abstract linking to the original website which published the news.

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Does QVOD Business Model Touch China’s Warning line of Government Regulatory?

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(By You Yunting) Abstract:  The nature of “QVOD Business Model” is that both large and small-sized companies are to jointly infringe online copyrights. Under the facts that large companies provided technology and commerce and then small companies engaged in infringing works, such cooperation set up an environment of competitive advantages resulting from weak regulatory. This cooperation’s true cleverness comes from the deepen understanding of safe harbor rules and the Internet’s globalization and anonymity. If “QVOD Business Model” is continuous operating, such model may be cumulative legal risks and thus is likely that a criminal investigation can make an end of “QVOD Business Model”.

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How Many Ways would be Available to Protect Online Copyright?

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 (By You Yunting) Within the World Intellectual Property Day approaching, Zhihu.com invited me to answer some questions about the popularization of intellectual property rights with the second topic below regarding what channels of online copyright enforcement would be available in China.

Yesterday, we discussed what are the difficulties in the online copyright enforcement in China. With different types of infringement, today I will discuss how to protect online copyright. Actually, there are three channels consisting of online criticism, complaints and litigation.

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What are the Difficulties in the Online Copyright Enforcement in China?

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(By You Yunting) Within the World Intellectual Property Day approaching, Zhihu.com invited me to answer some questions about the popularization of intellectual property rights with the first one below regarding what the difficulties are in the online copyright enforcement in China.

The Copyright Law aims to protect many types of works, including cinematographic works, television, written works, works of fine arts and graphic works. However, there are different kinds of infringement. When referring to whether relates to Internet, it can distinguish into online infringement and offline infringement. When referring to the infringement methods, it may include unauthorized reproduction and personate plagiarism. When talking about infringing any specific rights, it may discuss the right of modification, the right of integrity and so on. Now that I think about it, I’d like to narrow it down to a topic regarding what difficulties are in the online copyright enforcement China.

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Should Qian Zhongshu’s Letter Manuscripts be Protected After He Passed Away?

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(By You Yunting) Abstract: In the proceedings of Qian Zhongshu’s letter manuscripts, in ruling whether the privacy right of decedents to a person should be protected by laws, the court decided that the relevant letters and manuscripts are irrelevant to the public interest and thus are private. However, the protective scope of the privacy right between the decedents of a person and a currently living person is different, and the protection of privacy right of decedents is weaker than the right of the public to be informed. The auctioning of these letters and manuscripts would, if it didn’t act to harm the reputations of Qian Zhongshu’s successors and relatives, not constitute an invasion of privacy.

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Is RSS Output in Websites Kinda Fair Use in the Copyright Law?

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 (By You Yunting) A user on Zhihu.com asked some question about RSS

  1. Is it kinda fair use of RSS?
  2. Is it kinda fair use to transfer the excerpt context RSS to the full text RSS?
  3. Is it kinda fair use of Flipboard and similar applications’ excerpt context which do not use RSS?

In terms of the first question: ,Is it kinda fair use of RSS?

If a website supports full content RSS output, then it is actually the using on the license of the copyright holder instead of the fair use. While, where a website only supports excerpt context RSS and if a third party scraps the content into a full context RSS, it is infringing as it has used the content without any license.

Let’s first check the definition of RSS. We could find a clear definition in Wikipedia (http://en.wikipedia.org/wiki/Rss.): If a website placed the RSS file on its page, user could use a RSS feed to read the latest contents if he cannot open the content page. Based on the said character of RSS, in author’s opinion, RSS actually is a form of authorization from the site owners. If the website provides RSS file, it licenses users to read the content without visiting its website. According to the Copyright Law, Fair use means that under the specific circumstance we can use the content without the copyright’s holder’s permit and with payment of remuneration. The transliteration of a published work into Braiile and into minority nationality languages and free performance of a published work belong to fair use.

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Could NetDragon’s Providing Plants vs Zombies 2 Be Protected under the Safe Harbor Principle?

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(By You Yunting) In recent days, Plants VS Zombies 2, the sequel to the global hit game Plants VS Zombies, came on the market in Apple’s AppStore in Australia. Afer initial release, millions of users downloaded the app from the Australia store. In China, however, the situation is quite different. As reported by the media, within the first 24 hours of the game’s release, many unlocked versions of the application were uploaded to third party media providers, like ZS91.com, and that the encrypted in-game items had been cracked.

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Why China Court Protects Violation Against GPL License Agreement?

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(By You Yunting) We could find no regulation in China’s Copyright Law and Regulation on the Protection of Computer Software with regard to the open source software. In a dispute judged by Haidian People’s Court in the 1st instance and Beijing No.1 Intermediate People’s Court in the 2nd instance, though both courts determined the validity of the open source agreement, they supported those violating the GNU GPL as failed in disclosing newly added source code could claim the copyright over the new work. To our understanding, the case, on the  one hand, had showed the pragmatism of China courts, and on the other hand, it also demonstrated that the open source software organization is necessarily to be seen in the right protection on the OSS software.

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Using Counterfeit Software to Manufacture Hardware May Constitute Copyright Infringement by the User

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Abstract:

(By Luo Yanjie) Using another party’s copyrighted software,  and combining that technology with specific hardware product to produce a similar product may constitute copyright infringement. When determining whether such action constitute as a crime, the penalty may be calculated by the total value  of the hardware and software products,

When employees of high-tech companies leaves their employment, they may cause their former employer huge financial losses if they illegally uses the technology or software they obtained from their former employer. Therefore, companies generally take preventive measures with its employees by methods such as a duty not to compete or a non-disclosure agreement. For serious offenses, companies could consider filing criminal charges. In this post, you would see one such typical case.

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Why Hainan Netcom Is Judged Infringement Liability for IP Addresses It Manages?

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Abstract

(By Albert Chen) Hainan Netcom is an Internet Service Provider (“ISP”), but it also provides the content on the Internet. For the URL available on its web pages, the company should be obligated to take an even higher care with regards to its content. Even after the company fails to demonstrate that the IP address is used by a third party, and it has fulfilled its obligation to check the content of the webpage, the company should still be liable for any corresponding infringement.

Case Summary:

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China’s Courts Found Non-Infringement for Unauthorized Remake of Song

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(By Luo Yanjie) Abstract: The scope of the statutory license includes the manufacturing of the audio recording, and also includes the distribution of the work afterwards. Judging from the latest case, the written statement of the right holder must explicitly exclude the application of statutory license, and cannot simply exclude it by claiming “chasing any infringement.”

The statutory license provided in the Copyright Law is to prevent a monopoly in the music market, but the law also regulates that the right holder has the right to exclude that license. ” However as to what kind statement shall be made within such exclusion statement, we have found no such regulation in law. According to the case described in this essay, the recording industry tends to use the term “copyright reserved, and infringement chased”, which in fact is not within the scope of the license due to the followings:

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China Court’s Injunction Ruling: the Auction Company Shall Not Sell Qian Zhongshu and Yang Jiang’s Letter and Manuscripts

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(By You Yunting) As reported by Guangming News (note: the link is in Chinese), Beijing No.2 Intermediate People’s Court ruled in recent to demand the SUNGARI Auction Firm (the “SUNGARI”) not to carry out any conducts which would infringement the copyright contained in the letters written by Qian Zhongshu, Yang Jiang, Qian Yuan to Li Guoqiang. In the previous posts, we have put forward our opinions on the issue (post 1 and post 2).

According to the report, the court ruled that:

1. As the tools to communicate emotions, exchange ideas and discuss issues, the letter is generally the literal work finished by the writer basing on his/her independent thinking, and could be the work protected in the Copyright Law. Its copyright shall be owned by the author, who is namely the sender.

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How to Divide the Burden of Proof in Software Infringement Cases in China?

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(By Luo Yanjie) Abstract: In software infringement lawsuits, the plaintiff shall demonstrate itself as the rights holder of the software involved and the “substantial similarity” of the defendant’s software with its own. On the opposite side of the coin, once a defendant counters by claiming that no infringements have been made, it shall present relevant evidence; otherwise, it shall bear any disadvantages resulting from the failure to present proof of a lack of infringement. As for the case described in this essay, although it involves open source software, no definitive solution has yet been made to solve this particular legal program, to our disappointment.

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Could Yang Jiang Prevents the Auction Off of Qian Zhongshu’s Letters with Friends?

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(By You Yunting)At first, the author would like to make a digression statement: in the article “Would Tencent Take the Copyright of Contents Published by Users on WeChat?”, the author analyzed the misunderstanding arisen by the Tencent User Agreement, and after its publication, Tencent modified its agreement, by which the original article has been amended into “For the contents created by the user when using the service herein provided, its IPR shall be the property of the user or the related right holder.” The author deeply appreciates their quick acceptation of the advice.

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