Why It Is Not Easy to Combat QVOD Copyright Infringement?

By Luo Yanjie

Most right holders of video in China are unsatisfied with a company named QVOD (the “QVOD Company”). Because anyone can use the QVOD Company’s web establishment scheme and the QVOD (the software of QVOD Company) to build a web to stream videos for users, and it has resulted in the wide spread of pirated works, while the right owners could not find the owner of websites in their right protections. Then, by view of law, is the QVOD infringing others’ rights? And what liabilities shall it take accordingly? The following is our analysis on it:

I. No evidence to QVOD’s infringement

Unlike the general infringing software, QVOD is mostly criticized for its aid in the spread out of piracy in law. And the aid in the infringement only has two specific situations: either is designed for the infringement or designed to induce the infringement by others.

1. The legal purpose of QVOD

Undeniably, there are many websites spreading the pirated works through QVOD, yet it could not exclude the legal purpose of the software. We could see the streaming of copyrighted and licensed works on QVOD, and that could explain the non-infringement purpose of the software. In the case of QVOD does not provide content by itself, others’ using of the software to provide infringing works is none of the software developer’s business. It is similar with “Thunder”(the software of Xunlei Company). Thunder’s download function is very powerful, it can also be used for BT, eMule peer-to-peer download. Others’ using thunder to download pirated works could not blame for Xunlei Company. According to Chinese Copyright law and the principle of technology neutrality, there is no law can be used to decide QVOD itself infringing.

2. QVOD has not be found inducing others to infringe

After visiting QVOD Company’s website, the author didn’t found any suspected induction of others’ infringement. However, it is needed to be notable that the latest version of QVOD already provided the “search function”. But it is provided by a third party website named “Happy Search” (According to China ICP record, the website is established by individual), with Qvod only providing an entrance to that search. There is no evidence that QVOD has classify, recommend or edit the searched resources. Therefore, as to this “search” function, the developer shall apply “port principle” to free the liability.

Of course, it is possible that QVOD Company is playing “Double Role”. For example, once the evidence to “Happy search” is established by QVOD Company themselves, the database is also provided by their own, then its infringement could be proven. In fact, there is a similar case: ZhongSou (note: the link is in Chinese), a music search engine, provided pirated mp3 through established download site itself. Finally, the court identified their tort liability. If right holders can research from this angle and find clues about QVOD Company and resource release station are alliance (such as why QVOD cooperated with an individual website). Right may find QVOD Company infringement. But in the absence of evidence, QVOD Company don’t infringe.

II. Websites using QVOD to provide pirated works constitute infringement

For websites providing infringing works through QVOD, although it is not directly providing content (all works spread by P2P), but from a legal perspective, there is no difficulty in theory to combat these small site. These sites generally edit, classify and sort infringing works. The website operator obviously knows the works they provided are infringing works, according to “Regulation on Protection of the Right to Network Dissemination of Information”, these small websites should bear the liability and even criminal liability.

III. It is hard to combat infringing website in practice.

Although as previously mentioned, websites providing infringing works needs to bear tort liability. But in practice, these websites are generally small-scale and hard to find. Many servers of websites are abroad. For this situation, the author thought it is the inevitable phenomenon because of development of the Internet. There always are websites existing through infringement. The key is to find possible proof driving these small website with interests in the chain and fight on the very beginning.

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Why It Is Not Easy to Combat QVOD Copyright Infringement?

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