(By Luo Yanjie) Recently, our team represented a client who developed an App offering a linking service, in an infringement case over the linking of a copyrighted video on the mobile internet. The court made a final judgment in favor of our client, on the grounds that the safe harbor principle applied in this case. In today’s post, we will introduce this case below.
Introduction to the Case:
Plaintiff: China Film Media Asia Audio Video Distribution Co. Ltd (the “China Film Media Co. Ltd”)
1st Defendant: Youku.com
2nd Defendant: 51TV.com
Court of first instance: Yangpu District Primary People’s Court
Court of second instance: Shanghai No.2 Intermediate People’s Court
China Film Media Co. Ltd, the copyright owner of the movie Isabella (the “disputed movie”), authorized Youku.com to broadcast Isabella to personal computers through the internet, but at the same time did not authorize Youku.com to broadcast the movie to other types of devices, such as mobile phones. However, after the China Film Media Co., Ltd discovered that consumers could watch the disputed movie through Kuaishou Movie, a mobile client developed by 51TV.com, through a link to Youku.com, China Film Media Co., Ltd brought the case to court claiming that Youku.com and 51TV.com had engaged in infringement of its copyright.
Yangpu District Primary People’s Court heard the case and decided that Youku.com and 51TV.com had not engaged in infringement, on the grounds that Youku.com had the right to upload the disputed movie and that 51TV.com had merely offered a link to the disputed movie. Dissatisfied with the ruling, China Film Media Co., Ltd appealed. The Shanghai No.2 Intermediate People’s Court accepted the case and held the following:
- China Film Media Co., Ltd was unable to prove that it had authorized a limited right of information communication via network to Youku.com, insufficiently demonstrating that Youku.com went beyond the given authorization to broadcast the disputed movie.
- Due to the fact that 51TV.com merely offered a linking service, which Youku.com was authorized to broadcast, 51TV.com did not engage in infringement; either direct or contributory in nature.
Therefore, Shanghai No.2 Intermediate People’s Court affirmed the original judgment.
1. What constitutes infringement against the right of information communication via network?
In this case, the legal ground of infringement claimed by China Film Media Co., Ltd was that Youku.com was unauthorized to broadcast the disputed movie on a mobile client. However, this is a contractual dispute between the copyright owner and the licensee, irrelevant to any third party. In my view, the right of information communication via network refers to the act of uploading the works to a network and then providing those works to the public. Therefore, the stated infringement means any unauthorized uploading and or public provision of such a work. However, in this case, where Youku.com was authorized to upload the disputed movie and regardless of whether that went beyond the authorization, it is unlikely to constitute infringement. This may merely constitute a breach of contract and it is a great pity that the court has not decided such a point in this case.
2. Indirect infringement is premised on the existence of direct infringement.
In this case, Kuaishou Movie merely offered a linking service. From the perspective of the relevant legislation, 51TV.com was acting as a network service provider without providing the disputed movie directly. As such, 51TV.com did not engage in direct infringement but its actions will fall under Article 23 of the Regulations on the Protection of Rights to Information Network Communication, which stipulates that “where a network service provider provides any searching or linking service for its service objects or cuts off the links to any infringing work, performance or audio-visual product in accordance with these Regulations, after receiving a notice from the owner, it shall not be required to assume the liability for compensation; However, where anyone is fully aware or should have known that any of the linked works, performances or audio-visual products constituted infringement, it shall assume the liability for joint-infringement.”
Youku.com is entitled to broadcast the disputed movie and thus is unable to infringe the rights of the appellate. As 51TV.com can’t, acting as a party who provides linking service, engage in indirect infringement unless Youku.com engaged in direct infringement, the court decided that 51TV.com did not infringe the copyright of the appellate.