The Copyright Infringement Risks and Countermeasures that Communication Equipment Manufacturers Should Pay Attention to When Conducting Business in China

With the development of mobile Internet technology, it is more and more convenient for people to obtain movies and TV series through mobile phones. However, how to divide the liability of infringing intellectual property rights among mobile phone manufacturers, mobile phone built-in App operators, and work copyright parties in such industrial chains? Does the mobile phone manufacturer constitute an infringement of the right of information network dissemination when mobile phone users obtain a work provided by a third-party through a mobile phone? These problems are the frontier problems brought about by the development of mobile communication technology to information network dissemination. There are also technical difficulties in determining the true source of works in the information network.

Faced with these difficult problems, the Chinese courts conducted in-depth explorations. In a case XX, Wis & Weals Law Firm strived for the largest rights and interests of clients. Based on this typical case, in view of the focus of the above disputes, we believe that:

I. Several principles for judging infringement upon the right of information network dissemination

Article 10 of the Copyright Law stipulates that: "The right of information network dissemination means the right to provide works to the public by wired or wireless means so that the public can obtain the works at the individually designated time and place;"

Paragraph 1 of Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving the Infringement upon the Right of information network dissemination  stipulates that: "If, without permission, any Internet user or Internet service provider provides through information network the works, performances and audio and video recordings to which the right holder enjoys the right of information network dissemination , except as otherwise provided by laws and administrative regulations, the people's court shall ascertain that such an act constitutes an infringement upon the right of information network dissemination ."

According to the above legal provisions, the focus of the right of information network dissemination lies in "the provision of works", but the law gives no clear stipulations on how to define the act of "provision". Therefore, there are several criteria for identifying the act of infringement. The commonly used criteria include "server criterion", "user perception criterion", "substantial substitution criterion" and "legal criterion" and "substantial presentation criterion".

These criteria, whichever is used, have a common goal: to try to find the best criterion to balance rights and interests. While guaranteeing the exchange of Internet information, the right to determine "the way and scope of providing works" will be returned to the right holder as this is the only means and way for the right holder to realize the property attribute of the copyright.

II. Application of the infringement judgment principle in judicial practice

In judicial practice, there always exists different criteria for judging infringement, among which the biggest controversy lies between "user perception criterion" and "server criterion".

The first-instance judgment on the 2004 case of the three major record companies (Warner, Eastern and Sony) v. Shiji Yuebo is an early typical case in this regard. The judgment involves the application of "user perception criterion".

The first-instance judgment on this case generally also resorted to the "user perception criterion".

In the 2015 case of Happy Sunshine v. Tongfang, Beijing Intellectual Property Court sorted out the different judgments based on server criterion and user perception criterion since 2003 and found that server criterion was the prime criterion used in judicial practice, and thus server criterion was considered as the prime reasonable criterion for identifying the infringement upon the right of information network dissemination. This case can be regarded as a watershed in determining the criteria for identifying the infringement upon the right of information network dissemination. So far, the status of "server criterion" has been further consolidated at both practical and legislative levels.

At the practical level, in the 2016 case of Tencent v. Beijing E-link Way Technology Co., Ltd., Beijing Intellectual Property Court reiterated its adherence to the "server criterion".

At the legislative level, there are also regulations affirming the "server criterion". Paragraph 2 of Article 3 of Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving the Infringement upon the Right of information network dissemination stipulates that: "If any Internet user or Internet service provider places works, performances and audio and video recordings in the information network by uploading them to an Internet server, establishing shared documents, using file-sharing software works or otherwise, so that the public can download, browse or otherwise obtain such works, performances and audio and video recordings at the individually designated time and place, the people's court shall ascertain that such Internet user or Internet service provider has implemented the act of provision as stipulated in the preceding paragraph."

As far as the typical case is concerned, the court of second instance also adopted the "server criterion" and stated in its judgment that: "If the disputed software in the disputed mobile phone is used to view the disputed works, when users search for the name of the disputed works, the software will send a search request to the server of the third party Sohu Video, and obtain the disputed works through searching the Internet address of the server provided by the Sohu Video. Based on the above facts, the court of second instance revoked the judgment of first instance and rejected all claims of the plaintiff.

Ⅲ. How to identify the source of works by technical means

As mentioned above, in determining whether deep linking constitute an infringement upon the right of information network dissemination, it is very important to identify the source of the disputed works. Therefore, we hereby make a discussion on how to identify the source of the disputed works under the background of deep linking.

1. Proof of source of works in deep linking

In judicial practice, "there is no uniform practice or criterion for judging the extent to which the defendant has produced evidence required to affirm that the network service provider has provided deep linking only. In fact, this is the key reason for the existence of different judgments on similar cases".

The general idea of investigation in the second instance of the typical case is to restore the whole process of users searching for and finally broadcasting the disputed works on the disputed mobile phone and the video broadcasting software installed at the factory, and to make technical analysis on the background data captured in this process, so as to identify the source of the disputed works through technical analysis.

2. Technical attributes of api_key

In the typical case, the court of second instance conducted a technical investigation and determined through api_key that the user's request was directed to the server of a third person. Through the site investigation, the background URL data string obtained by the court of second instance contains api_key, and the api_keys of all the disputed works are identical. This api_key is also identical with the api_key mentioned in the email between the third party and the defendant following the signing of the Promotion Agreement. This consistency can hardly be considered as coincidence.

From a technical point of view, Open API is currently a common mode of Internet application development. One end of API is an open information platform, such as the third party in this case, and the other is a third party platform, such as the defendant in the typical case. Open platform can realize data interaction with the third party by providing api_key to the third party platform. The open platform has the right to determine the scope of data it can interact with the third party, and to interrupt the information interaction with the third party platform at any time by cutting off the API port. Given the present technology, both the open platform and the third party platform can view the time and content of data interaction through background data.