New Headaches with "New Media"

2011/09/22,By Doris Li, China IP,[Copyright]

The Beijing News certainly embarked on a bumpy road in its enforcement. Ridiculed earlier as a “free nanny” who fed content to e-media unwillingly and helplessly, the print newspaper is now facing more complicated troubles as “new media” moves forward. The copyright dispute it encounters today will surely become a common headache of other organizations of traditional media.
The Beijing News has emerged stronger from its previous two influential infringement cases. In October 2006, it sued the TOM website under TOM.COM Corporation to Beijing No.1 Intermediate People’s Court, demanding an injunction against reprinting its stories and an author’s remuneration of 3 million Yuan. Precisely in July of that year, the State Council issued the Regulations on the Protection of the Right to Network Dissemination of Information, which made it clear that “The owners’ right to network dissemination of information is protected under the Copyright Law and this regulation. Unless otherwise provided under the laws or regulations, any organization or person providing to the public the works, performances, or audio-visual recordings of others through information networks shall obtain the permission from, and pay remuneration, to the owners.” The lawsuit was therefore regarded as the first ever encounter between traditional and online media. However, this highly watched case did not become a judicial precedent as it was eventually settled.
In May 2010, the Beijing News sued “Zhejiang News Online” ( for unlawfully reprinting 7,706 stories of hers between 2003 and 2007. The decision of Hangzhou Intermediate People’s Court was: the case involved over 7,000 articles and 500 authors; the plaintiff’s claims were premised on different factual bases, constituting multiple contentions which require separate actions; because of the nature of these contentions, it is inappropriate to lump them in one case. The court therefore directed the plaintiff by decree to file a separate suit for individual for each and every article or for every author. This ridiculous eye-popper demanding 7,706 actions has taught the printed media a good lesson for enforcing their rights. Despite the newspaper’s appeal to Zhejiang Provincial Higher People’s Court and a formal complaint against the Hangzhou court, the case was also settled after a certain period of wrestling.
“Adding Insult to Injury”
If the newspaper’s suit against TOM (a commercial portal) resulted in a cooperative mode between traditional printed media and commercial websites, that is, reprinting under permission and with a charge, then its dispute with Zhejiang News Online challenged the unspoken rule of “tacit consent to content exchange,” a decades-old agreement between official medias ever since 1949. The latest case, in which the Beijing News sued “Chinese newspapers and magazines,” an IPAD-based software, might expect to hammer out a rational benefit-distributing mechanism in the sphere of screen-touching media.
On April 25, 2011, the court of Beijing Haidian District heard the copyright infringement claim of Paibo Online (Beijing) Technology Co., Ltd. against Minesage Co., Ltd. A wholly-owned subsidiary of the Beijing News, Paibo is in charge of the newspaper’s copyright affairs and the operation of its website. Beijing-based Minesage was reportedly developed in July 2010 its “Chinese newspapers and magazines” software on the IPAD platform. Previously, Paibo found the software provided online reading of only two newspapers, Beijing News and Beijing Times , a service free from advertisements. But in the following months, scores of newspapers were found uploaded and commercials added. Paibo then demanded Minesage to delete the Beijing News from its service. According to Xu Yaoming, lawyer representing Paibo, Paibo sent a legal letter in November 2010 to Minesage but received no reply, so the firm preserved the evidence by having it notarized. Then it lodged a suit to the Haidian District court in February 2011, accusing Minesage for copyright infringement and demanding 608,000 yuan in damages and reasonable expenses.
“The enforcement efforts by the Beijing News in the past few years have been ridiculed by colleagues as money crazy,” said Xu, “but without the newspaper taking the initiative, today there would not be paid use of printed press content on commercial websites.” That perhaps explains why the Beijing News has emerged even braver upon each setback in its enforcement. Its current standard for authorizing commercial websites for reprinting is reportedly 600,000 yuan per year, which also became a direct evidence for its claim against Minesage.
The Case
Paibo monitoring showed that Minesage took the Beijing News off its “shelf” around April 5, 2011. The Haidian court held the first evidence exchange on April 12. Minesage asked for a stay, saying notarization documents were being prepared, and at the same time admitted all evidence presented by Paibo. It also presented screen prints showing the process of viewing the Beijing News on its software. According to the presentation, when clicking and reading the Beijing News in the software, a link to its website appeared at the lower part of the screen. Minesage argued that it only redirected to Beijing News website, instead of uploading and storing its content.
The court organized on April 20, 2011 the second evidence exchange, in which Minesage presented four pieces of evidence to show that its software only provided redirection service.
According to the defendant’s evidence, Minesage had its presentation notarized on April 12, 2011, hoping to prove that subscribers obtain the Beijing News’ URL and extract free PDF files to IPAD through a link to its website. Meanwhile, Minesage tried to prove that it didn’t edit, modify or cut the content collected from the website.
The Key Point of Contention
The plaintiff questioned the other party’s evidence. As China IP learned from the plaintiff’s lawyer, before the lawsuit, Minesage’s software only displayed an advertisement bar in the lower part of screen, which, however, was changed after the lawsuit into a website link in an update from version 1.5 to 1.5.2.
Besides, the p l a i n t i f f, taking as supplementary evidence the screen prints Minesage presented to the court, tried to prove that the modified software spent 8-40 minutes in downloading the Beijing News , against the only around three minutes recorded in the plaintiff ’s notarization letters. The technical reason for the dramatic change in downloading time, said Xu, was that the newspaper content was previously s tored in Minesage’s server from which users could download directly, and at a fast speed. But after the lawsuit, the defendant set the link to Beijing News website, so users had to collect and download information from Beijing News server, which slowed down the speed.
China IP contacted Mr. Wu Zefeng from Minesage but was told he was no longer in charge of the matter. Wu provided telephones of related departments of the firm, but they also said they didn’t know about the matter.
New Questions in Enforcement Process
According to Yuan Zhenfu, vice director of Shanghai Intellectual Property Academy, the important difference between this lawsuit and previous print- against- e-media cases is: 1) Most online media used to directly upload and disseminate the content of print media, but in this case the defendant said it only “redirected” to print media’s website, instead of uploading; 2) Most online media used to reprint traditional media’s content in a sporadic way, but in this case the defendant “transplanted” the entire content of the website to its platform, creating the effect of an unofficially published online version of the disputed newspaper.
Therefore the point is, is it only a link or storage and uploading directly?
In China’s judicial practice, cases of network information dissemination follow the “server standard”. That is, whether an ISP is engaged in network information dissemination depends on whether the works disseminated are uploaded by the ISP or placed in other ways on network servers open to public. In this case, the defendant argued that the plaintiff’s notarization documents could not prove the disputed content was stored in its server and uploaded, and its software only provided a link. The plaintiff, on the other hand, believed that after the suit was lodged, the defendant, using its technical advantage, modified its server. “Technically, such modification is no hard job, and can be done in a few minutes by a skilled hand,” said Zhang Bo, associate research fellow with the Chinese Academy of Social Sciences.
The court would, according to evidence and hearings, have its judgment on whether the defendant modified its server after the lawsuit, thus changing storage and uploading to simple linking, said Yuan. If the defendant only provided linking, without placing the Beijing News on its server, then the behavior is in nature a deep link. There are two different opinions—“server” and “user perception”—regarding whether a deep link constitutes dissemination on information network. According to the “server” standard, dissemination on information network is conducted only when the defendant uploads the content to the server it controls; and a deep link therefore does not constitute direct infringement of copyright since it is not dissemination on information network. According to the “user perception” standard, however, dissemination is conducted as long as users wrongly believe the content is provided by the website or platform that set the link. Currently, most ordinary “deep links” are not considered infringements according to the “server” standard.
However, the redirection in this case is no ordinary deep link, but a link purposely directed to copyrighted content. Moreover, the plaintiff’s evidence showed that the defendant’s software didn’t show the link address in Apple application shops. Therefore such a special deep link can be regarded a “target link”. Previous rulings from Beijing and Shanghai courts showed that “target links” aim at providing content of others and have reached that effect, and therefore can be determined as dissemination on information network and constitute direct copyright infringements.
Moreover, leaving copyright aside, such target link is a kind of unfair competition, because it enables the plaintiff’s users to obtain content without touching the plaintiff ’s official website. By providing a substitution of the print media’s online version, the defendant borrowed the plaintiff’s resources in an improper manner and robbed its users.
According to the Suggestions of Beijing Higher People’s Court Concerning Copyright Disputes Involving Computer Networks , “If the plaintiff claims that the form in which an ISP provides a service has made a user wrongly believe that the ISP is disseminating works, performances or sound or video recordings, but the ISP can provide evidence to prove that the service provided is only automatic access, automatic transmission, information storage space, searching, linking or P2P (point-to-point), the ISP shall not be determined to have conducted dissemination on information network.” “If the form of provision of a service by an ISP providing searching and linking services has made a user wrongly believe that it is providing works, performances or sound or video recordings, and the operator of a linked website claims that the service constitutes an infringement, it may be regulated under the Law against Unfair Competition.”
Whether the defendant modified its server might become a point of court argument in this case, Yuan said, adding that the court, however, might be more concerned with the substantial question—weather the defendant only directs to the plaintiff ’s content, or uploaded the content to its own server. The defendant has responsibility to give solid evidence and good reason to convince the court that it was only a link. In fact, as stated above, even if the court believes in its linking, such a target link is still considered bearing great risk of copyright infringement in dissemination on information network.
(Translated by Li Heng)

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