Data Type Differentiation and Ownership Analysis in Case Studies(32)

微博诉iDataAPI：赔偿额计算

When the plaintiff filed the lawsuit, it claimed economic losses of 20 million yuan, and the following two calculation methods were provided:

• The amount of profit made by the defendant as a result of the infringement

1) According to the accurate and hourly update of the number of "Sina Weibo" API data interface calls and the clear charging standard published on the defendant's website, the defendant's profit exceeded at least 26 million yuan, and considering the contribution of Weibo data and Weibo goodwill to the defendant's infringement profits, the plaintiff claimed 15 million yuan in damages for this part of the unfair competition;

According to the iDataAPI website, the Weibo API interface was launched on December 12, 2016, and the Weibo data interface service provided to users is charged according to the number of user calls, with a charging standard of 1 yuan or 2 yuan per 100 times, and the total number of user calls has exceeded 2.1 billion times and continues to grow in May 2019.

2) In addition to making a profit from the sale of Weibo data through API data interfaces, the defendant also provided customized services for capturing and selling Weibo data according to specific customer needs, which was extremely large-scale and also hugely profitable, and had reached at least 5 million yuan in damages against the law;

3) The above two parts of the infringement profits do not overlap, and the plaintiff claims 20 million yuan in compensation for the two parts together.

• The amount of losses suffered by the plaintiff as a result of the defendant's infringement

1) Referring to the receivables of the plaintiff in 2018 for products that paid to read articles with V+ members, it has exceeded 20 million yuan;

2) The defendant provided the v+ members who only provided the plaintiff to the paid users of the iDataAPI website at a very low price, and could provide all the v+ members paid to read the articles according to the ID number of the articles, which in fact caused the plaintiff to lose the legitimate income that the plaintiff should have obtained by paying to read the articles;

3) With respect to the defendant's act of grabbing, storing, and selling articles paid by V+ members to read for themselves, the losses suffered by the plaintiff have exceeded the amount of compensation of 20 million yuan claimed.

The court of first instance held that:

• The first calculation method provided by the plaintiff is relatively objective and has a more reasonable basis for calculation, while the second calculation method is mainly inference and is highly subjective. Therefore, the first method is used to calculate the amount of compensation to be borne by the defendant.
• Combined with the following factors, the plaintiff's claim for compensation for economic losses of 20 million yuan is fully supported:

The defendant was subjectively malicious, used malicious technical means, carried out many types of infringing acts, lasted for a long time, used a huge amount of data to call Weibo, used methods to confuse the source of the service or business relationship to publicize its infringing services, and the harmful consequences were serious.

The defendant had argued that it was a small and micro enterprise, and that its income based on Weibo data was very low and unprofitable, and submitted an audit report as evidence. The court of first instance did not accept it, and the court held that:

• The "Audit Report of Jian Yixun Shenzhen Branch from January 1, 2019 to December 31, 2020" submitted by the defendant shows that the operating income in 2019 is about 4 million yuan, and the income in 2020 is about more than 6 million yuan, and the "other matters that need to be explained" show that the Weibo income is more than 20,000 yuan, and the Weibo expenditure is more than 22,000 yuan. Considering that the audit object is the defendant's branch and there are large discrepancies in the amount of employee compensation, the authenticity of the financial information in the notes to the financial statements of the audit report and the professionalism of the audit report are questioned;
• The defendant's infringement services of scraping, storing, and selling Weibo data are technology-intensive, so even if the number of employees who pay social security in Jian Yixun's branch is small, it does not mean that the scale of the data infringement involved in the case against the plaintiff is small;
• The object of the audit is Jian Yixun's branch, and Jian Yixun's company is not involved, so even if the audit report is true and credible, it cannot reflect the joint infringement and profit of the two defendants.

On appeal, the defendant argued that the damages were excessive, mainly on the following grounds:

• The data on the number of calls to Weibo published by the iDataAPI website is inflated, and
• The court of first instance calculated that the fee standard was 1 yuan/100 times instead of the lowest 0.5 yuan/100 times, which was at least 10.8989 million yuan overcounted.

The court of second instance upheld the original judgment on the following grounds:

• Based on the following circumstances, it can be determined that according to the principle of good faith in litigation, it is more fair and reasonable for the defendant rather than the plaintiff to bear the corresponding adverse presumption of legal consequences in this case:

1) The burden of proof should be borne on the defendant's official website as to whether the number of calls to Weibo is inflated and its actual profits;

2) According to common sense, the defendant obviously knew its actual income and profits, and it was fully capable of adducing evidence to prove the specific number of calls and income of the API interface involving Weibo data, including detailed records of the number of API calls and charges, as well as relevant financial books and materials;

3) If the defendant actively adduces evidence to refute, the court will naturally determine the amount of compensation based on relevant evidence and in accordance with the idea of refined compensation. However, when the plaintiff clearly put forward the claim for compensation of 20 million yuan, the calculation method and related evidence, the defendant still chose to only make oral arguments and did not provide any specific financial evidence to refute it, and still neglected to provide evidence when appealing against the amount of compensation awarded in the first-instance judgment.

4) It can be seen from this that even if the defendant's infringement profits are calculated according to the defendant's true financial information, it may not be far lower than the amount of compensation claimed by the plaintiff.

• The court of first instance adopted a charging standard of 1 yuan per 100 times and about 2.1 billion calls for Weibo data when calculating the profits from infringement, which is reasonable and conservative enough:

1) The court used the total number of calls to the Weibo data interface as of May 2019, and the sued act only stopped in March 2021

2) Among the 11 data interfaces sued by iDataAPI, only interface 9 (providing "Weibo like" data) has a charging standard of 0.5 yuan/100 times, and the price of the remaining 10 interfaces is 1 yuan/100 times and 2 yuan/100 times.

• Therefore, although it is difficult to accurately prove the actual losses of the plaintiff or the profits of the defendant's infringement in this case, it is not improper for the court of first instance to calculate the defendant's illegal income of 21.7979 million yuan involving the use of Weibo data based on the specific facts and evidence in the case, and to determine the amount of compensation in this case by comprehensively considering all relevant factors. The defendant's appeal claim that the amount of compensation was too high was not supported because it lacked sufficient merit.

The court of second instance also did not accept the evidence in the "Special Audit Report on Income" submitted by the defendant in the second instance on the following grounds:

• The defendant had unilaterally entrusted an audit institution to issue an audit report in the first instance, but there were major authenticity and professional problems in the Audit Report of the first instance, including at least many problems such as obviously abnormal company titles, different fonts, and different accounting data for the same matter, and the defendant and the relevant audit institutions had no reasonable explanation for this, and it was not improper for the court of first instance not to accept it.
• In this appeal, the defendant should provide real financial evidence and information, rather than continuing to unilaterally commission the audit, so the necessity and credibility of the report are questionable.
• The Audit Report of the second instance did not consider the importance of the report being used to present evidence in judicial cases, did not express any content that the accountant knew that the report was used to present evidence in judicial cases or that the court was clearly the intended user of the audit report, nor did it consider the objective business environment and legal environment in which the defendant faced adverse legal consequences of the first-instance judgment and appealed.
• The Audit Report of the second instance did not take into account the material misstatement of the financial statements attached to the Audit Report of the first instance, did not communicate, inquire and verify with the previous accountant and the defendant on the inconsistency of the audit results before and after the Weibo revenue data, and did not give any explanation on the material authenticity and professionalism of the relevant financial statements.
• The Audit Report of the second instance only used the contract and SaaS platform data provided by the defendant as the audit materials, and did not collect sufficient and appropriate audit evidence, nor did it understand and analyze the defendant's ability and possibility of controlling, tampering with, and concealing the data of its back-end system.
• In summary, the report was unilaterally commissioned and the audit materials were provided unilaterally, and in fact it was submitted to deal with the litigation as evidence formed after the fact, and its conclusions were not admissible.

The day after tomorrow, I started to watch the Tmall v. Data Moving Software case.

Reference: Intellectual Property Treasure WeChat Official Account, released on January 19, 2024 "Competition Case|The First Case Involving Weibo Data Capture Transaction, Guangdong High Court Final Judgment!" (Shenzhen Intermediate People's Court of Guangdong Province (2020) Yue 03 Min Chu No. 4626)