(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.

The author then logged on to NetDragon’s (00777.HK) ZS 91, and found the  company provided three versions of Plants vs Zombies 2, including the original version, a Chinese-language version, and a coin version. Moreover, the company recommended downloading the software on its main page. A reporter interviewed the author, asking for opinions regarding the unlicensed downloading of the software and the hacked in-game item purchase system. The following is a summary with details of the author’s response:

I. Plants vs Zombies 2 is in fact primarily run on smartphone systems. The legitimate rights holder to the game is PopCap, a company licensed and registered in the United States. According to the Berne Convention, however, to which China is a participant, it can enjoy legal protection under China’s Copyright Law. At the same time, the game is freely available through Apple’s Australia AppStore. However, the simple fact that the game is free does not mean that it is provided to consumers without restrictions in its license agreement; in reality, providing downloads of the software outside of the AppStore can be considered a violation and infringement of the copyright holder’s right to disseminate its copyrighted property through its own networks.

II. Local app stores in China also provide Plants vs Zombies for download, most of whom provided a “cracked” version of the software, which has broken the in-game purchasing system, and has enabled users to unlock portions of the game that require further payment in order to be played. Due to this, they have also violated relevant regulations in the Copyright Law that restrict others from damaging technological measures built into the subject material by the rights holder, or any other measures activated to ensure copyright protection. All of the above acts are most certainly copyright infringement, and if the rights holder reported such violations to the relevant authorities, the software pirates would likely have to face administrative punishment or even criminal liability.

III. A download from a Chinese iOS platform like ZS91 would not be able to shield itself from liability under the Safe Harbor Principle. Theoretically, the website committed copyright infringement, because it provided a download without a license from the copyright holder. If such a software provider is to be protected, the law regulates that if the content is uploaded by end users, and at the same time the website deleted the infringing content on notice from the copyright holder within a reasonable amount of time, then it could be exempt from infringement liability. This is the Safe Harbor Principle, in a nutshell. The premise of the principle is that the owner of the website has no intimate knowledge regarding infringing material uploaded to its website, and therefore should not be held to be liable. In the case of ZS91’s providing cracked versions of Plants vs Zombies 2, such a defense will not apply. At present, the software is still promoted and made available on its main page, and the app can be downloaded instantly upon clicking the appropriate icon. Such open support of such a download makes it clear that the platform operator provides the service, rather than material simply uploaded by an end user. For this reason, it would not be able to disclaim liability under the Safe Harbor Principle.

Net Dragon, 91’s owner and operator, has really gone beyond the expectations of the author. How could such a well-known corporation, listed on the Hong Kong Stock Exchange, do such a thing? How could it openly flaunt such infringement, and yet remain unscathed? Several years ago, the author saw another report against Net Dragon for abuses of copyright, but in that case as well, there was no apparent consequence.

In 2005, the author worked at Shanda, primarily in charge of IPR protection for the company. Qidian.com, operated under Shanda, had hundreds of its articles stolen and reproduced by Net Dragon. Considering Net Dragon is a much larger company, Shanda then decided to initiate a complaint regarding protection of its copyrights, and paid tens of thousands in securing notarization of all the infringement that had occurred. The second step was to send a complaint to the Fuzhou Copyright Office of notifying them of Net Dragon’s infringement. Several weeks later, the author called the Fuzhou Copyright Office to inquire as to the results of its investigation, and was told that the authorities demanded the company delete the pirated content, but because the content was uploaded by an end user and not Net Dragon itself, the latter would not be required to assume any liability. In addition, the office added, it was not inclined to punish Net Dragon in any way. In ZS91’s case, however, each pirated work is featured on its own webpage. If it was uploaded by an end user, then such pages would have been made by the end user; similarly, on 91’s webpages, we saw recommendations of various works copyrighted by Qidian. Such behavior by both parties proves to some extent that the website has at least participated in the editing and recommendation of the pirated content, or possibly that it has uploaded the pirated content on its own. If this were the case, these parties would not be exempt from copyright infringement liability. In any case, as in my old position at Shanda, protected by the local authorities ensured our ultimate failure in pursuing those infringing our copyrights.

Before closing, the author has noted that Net Dragon has sold 91 to a large company for roughly RMB 20 billion. This has reminded the author of Hong Lei, the author of Tomato Garden, and Chen Shoufu, the author of Shanhuchong QQ, both of whom were accused of copyright infringement and thrown in prison. Compared with their experience, Net Dragon, as a listed company can best be described with an old Chinese idiom, which roughly translated means that the law only punishes those who steal small articles, but never punish those liable for stealing the nation.

Lawyer Contacts

You Yunting：86-21-52134918  youyunting@debund.com/yytbest@gmail.com

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