The Development of China Court’s Judgment over Criminal Offence of Online Game Cheating Programs, I

(By You Yunting) Since Shanda imported the massively popular online game, MIR, from South Korea in 2001, the online game industry has gradually become one of the most profitable businesses in China, and has made a fortune for tycoons such as Chen Tianqiao and Ding Lei. On the other hand, all kinds of illicit activities have arisen with the development of the online game business, among which cheating programs to assist players is the most troublesome for the game companies.

According to information acquired by the writer while working in a game company, cheating programs are software that run with the game software, thus giving them their name as game cheating programs. Cheating programs have several harms. First, they incur Gresham’s Law (bad money chases out good money), which makes rules-obeying players easily defeated and thereby damages the fairness of the game. Second they put more burden on the server and force the operator to purchase more servers and the bandwidth, which undoubtedly increases costs and decreases the stability of the server. Third, they enable players to fulfill game objective more quickly, which abnormally speeds up the progress of the game and could force the game company invest more human resources into developing new game content or elements. Although it is possible that some cheating programs are used to make up for the defects in the game, most have harmed the gaming experience, added costs of the company’s development and operation, and could jeopardize stable running of the game.

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Analysis of the Assumption of Liability for E-Merchants in IPR Disputes in China, II

—Interpretations on Solutions to Several Issues in Hearing E-Commerce IPR Infringement Cases

In today’s post we will continue to discuss the standards to be considered in determining the liability of e-merchant platforms.

III. Standards in Determining the Indirect Infringement Liability of E-Merchant Platforms

As discussed above, an e-merchant platform may only assume indirect infringement liability under the law, and therefore it would not be necessarily always be liable for infringement occurring on its platform. The pressing question then, is what standards shall be utilized when determining their liability? In response to this question, we would like to share our analysis based on a comparison of similar statutes:

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Analysis of the Assumption of Liability for E-Merchants in IPR Disputes in China, I

—Interpretations on Solutions to Several Issues in Hearing E-Commerce IP Infringement Cases

(By Luo Yanjie) In recent years, E-Commerce in China has thrived along with the development of online shopping. According to some news reports, the volume of the transactions from 360buy.com totaled more than RMB sixty billion Yuan, and Suning’s online sales achieved a comparatively paltry RMB 18.336 billion Yuan. With respect to Taobao.com and its affiliated websites, their business gains have vastly superseded all other rivals. By November 2012, Taobao.com and Tmall had sales of over RMB 1000 billion Yuan, which is almost three times that of Bailian Group, Suning and Gome’ s annual income in 2011 combined. The aforesaid three companies are currently the top three retail chains in China.

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Is It Necessary to Receive Approval from the Rights Holder of an Original Work in Order to Use Adapted Work?

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(By Luo Yanjie) Recent internet news has stated that the film adaption rights for Big Breast & Wide Hips, the work of 2012 Nobel laureate, Mo Yan, have sold for RMB 11,180,000 yuan, and the film will be directed by Zhang Yimou. Although Mo Yan’s agency ultimately confirmed that this was a false rumor, the cinematographic adaption of Mo Yan’s work has garnered public attention. With the trend of greater diversity in forms of work, we have seen more and more works recomposed in other artistic forms. Legally speaking, this re-composition actually belongs to adaption under the Copyright Law, and the work created is therefore adapted work. Today’s post will introduce the Chinese system for adaption of the film and cinematographic works.

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Comparison of Administrative and Judicial Methods of Domain Name Dispute Settlement in China

(By Albert Chen) Currently, the main dispute resolution channels for domain name disputes include semi-administrative settlement and judicial settlement. In terms of regulation, the Measures for Settlement of Domain Name Disputes (the “Measures”) were promulgated as early as 2002 and then amended in 2006. The Measures are the primary basis for semi-administrative settlement of domain name dispute. As to judicial methods, the main basis is the Interpretation on Several Issues Concerning Application of Law in the Hearing of Computer Network Civil Disputes” (the “Interpretation”) promulgated by the Supreme People’s Court.

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Are New Rules on Internet Publication from GAPP against State Council’s Regulations?

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(By You Yunting) Abstract: By the “Management Measures of Internet Information Services” (the “Measures”) issued by the State Council, China will carry out a new system of filing and recording to those non-operating Internet information services, namely those services involving the open sharing of information. These websites falling within the measures shall undertake the recording and filing procedures laid out before publishing any and all information. Yet, the situation seems to have undergone some changes with the promulgation of the working draft of the “Management Regulations of Network Publishing Services” (the “Regulations”), wherein most information released onto the network would be deemed so-called “network publishing.” As provided in the Regulations, no matter whether the service is operating or non-operating, the requirements for a Network Publishing Service License (the “License”) shall apply. It can be easily seen that such regulations are being made that are essentially beyond any lawful authorization, and are in fact contrary to rules previously issued by the State Council.

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Why a Chinese Court Judged Apple Inc. to Be the Actual Operator of the AppStore Rather than iTunes S.A.R.L?

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(By Albert Chen) Recently, in the right to network dissemination of information dispute between Li Chengpeng, a well-known Chinese writer, and Apple, a Beijing judge held Apple as the actual operator of the App Store, even though the company had maintained that iTunes S.A.R.L (“iTunes”) is the actual operator, a fact afterwards admitted by iTunes. So, today’s post will introduce the reasoning used by the first instance court in its decision.

Li filed the lawsuit with the Beijing No.2 Intermediate People’s Court (“Intermediate Court”) on January 16, 2012, claiming that his latest work “李可乐抗拆记” was made into an app downloadable in App Store for free reading, which infringed his right to network dissemination of information. Additionally, as the operator, manager, and owner of the App Store, Apple should assume liability. Based on these points, Li demanded compensation for economic damages in the amount of 305,000 yuan and reasonable expenses in the amount of 5,425 yuan.

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How to Determine Infringement Conducts in Copyright Disputes in China Courts?

(By Luo Yanjie) The Getty Images (Beijing) Co., Ltd. (hereinafter “Getty”) provided the court with a product brochure naming defendants Shanghai Shuote Co., Ltd. (hereinafter “Shuote”) and Shanghai Yikang Co., Ltd. (the “Yikang”). Getty claimed that the brochure was procured from the 6th International Tire Exhibition in Shanghai during 19th to 20th of May 2009. The defendant argued that they had neither printed nor used the brochure. However, the plaintiff provided substantial evidence to prove that the brochure could only have been printed by the defendant; regardless, the defendants failed to provide any explanation proving otherwise. On the other hand, the court had solid reasons to presume both defendants had engaged in the printing and using of the brochure.

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Analysis on the Assumption of Liability in the Serv-U Infringement Lawsuit in China

(By Luo Yanjie) Serv-U is a kind of widely adopted FTP server terminal software, and its main function is to help the transmission of documents on websites. Because the software is relatively small and the normal user has no way to sense the server terminal, many domestic websites in China are now using pirated Serv-U. For this reason, Rhino Software Inc., the developer of Serv-U has been continuously fighting against the piracy of its software, a story which has recently been widely reported. The list of companies sued includes LockLock from South Korea, as well as Netac and eMule, among others. The compensation claimed in these cases ranges from half a million yuan to 1.99 million yuan.

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Is It Copyright Infringement to Perform “Gangnam Style” at a Corporate Annual Gala in China?

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(By You Yunting) PSY, the most popular South Korean Artist, has achieved more than 1 billion clicks, or views, on Youtube for his music video “Gangnam Style,” and has earned a global reputation. To perform Psy’s signature “horse-riding” dance has become an integral part of domestic corporate annual galas in China. In fact, the partners of our law firm have been encouraged by colleagues to perform the dance for everyone’s amusement. The problem was that none of us could actually perform the “horse-riding” dance properly. When facing such horrible demands from coworkers, a question raised by one of our associates interested me: would a performance of “Gangnam Style” infringe others’ lawful rights?

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Publishing Regulation from GAPP: Make Most Chinese Websites Illegal in Their Operation

(By You Yunting) Several days ago, the author wrote an essay “Is It Illegal for Amazon.cn Running Kindle Store with A License Borrowed from Business Cooperation?” And in recent, the Office of Legislative Affairs of the State Council published the news that, the General Administration of Press and Publication (the “GAPP”) is working with other departments drafting the exposure draft of Management Measures of Online Publish Service (the “Measures”) (note: the link is in Chinese). According to the Measures, the foreign invested company shall not engage themselves in the online publishing. The domestic publishing units shall report their cooperation with foreign companies in the service of online publishing. For this reason, once the Measures would come into effect, the Amazon, a foreign invested company, would have no access to participate in the business concerning the online publishing service, and its cooperation with Chineseall.com shall be reevaluated for the security by the administration.

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China Court: AppStore Could Not Enjoy Safe Harbor Principle in Apple VS. Writer Alliance (Updated)

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(By You YuntingUpdate: Apple made the following statement to the recently made court decision:

In AppStore, Chinese users could get more than 700,000 best apps from Apple developers. And as a holder of intellectual property, it has always been Apple’s awareness the importance of IPR protection, and thereby we carefully treat each infringement complaint. Apple cherishes the opinions and advices put forward by China Written Works Copyright Society, China Writers Association and Internet Society of China. For a better aid to the right protection of the content owners, Apple would continue improving the service quality.

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How to Complain Infringement on Taobao.com after It Moved out of “Notorious Markets” List

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(By Albert Chen & Huang Mengren) As said in a news report, the trade representative recently announced Taobao.com is removed from US notorious market list, and that could be contributed to Taobao.com’s effort in the last year, including the cleaning up on the website under the cooperation with the right holders and the industry association.

Really, in the last year, we have noticed the endeavor from Taobao.com. The website has executed a MEMO with MPAA, Motion Picture Association of America, to combat any illegal sales of the works registered in MPAA. And also we have seen the it launched the system of spot check over all the products sold on it, the IPR protection platform, and the amendment on IPR articles in Taobao Rules in accordance with its experience on IPR protection and the trend of the market.

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Beijing Love Story Is Confirmed as a Cooperative Work

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(By Albert Chen) Recently, the Beijing Xicheng People’s Court made its decision on the dispute over copyright ownership of Beijing Love Story (“Story”) between Li Yaling and Chen Sichen, confirming that the Story was a cooperative work and that Li held copyright rights over it. After the Court’s decision, Li stated she would take the lawsuit a step further to invalidate the copyright transfer contract made unilaterally by Chen.

Although the author has certainly not seen the contents of the verdict, and the outlook on Li’s appeal to have the contract invalidated is pessimistic, to some extent, Li has already fulfilled her rights protection goals. At the same time, this case also serves as a reminder for other creators of TV series to pay more attention to copyright ownership and protection.

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