With the development of the game industry and the iterative upgrading of game technology, the quality of game products has been continuously improved, and the scope of audiences has also been expanded, but it is also facing new risks of infringement. The Beijing Intellectual Property Court has heard such a copyright infringement case involving the stand-alone game "cloud game" service, let's take a look with Xiaozhi!
Brief facts of the case
In 2019, Wangyuan Shengtang Company discovered that Company Y provided online services for the game involved in the case on the website operated by it without permission, and players could run the game by clicking "web mode on". NetElement Shengtang Company believes that Company Y's act of disseminating the game involved in the case on the Internet has seriously infringed the copyright of NetElement Shengtang Company, specifically including the right of reproduction and information network dissemination enjoyed by NetElement Shengtang Company on the game involved in the case, as well as the copyright of the work formed by the continuous picture presented after the operation of the game in question. In addition, Company Y's unauthorized construction of an ECS constituted unfair competition.
Screenshot of the official website of "Ancient Sword and Legend 3".
Legal analysis
01 The Beijing Intellectual Property Court ascertained:
The "cloud gaming" service is a cloud computing-based game mode, which is essentially an interactive online video stream, in which the game is computed on a cloud server, and the rendered game screen is compressed and transmitted to the user through the network. Specifically, it can be understood as a computer that is remotely virtualized from an ultra-high-performance server, and the user can play the game in the assigned virtual computer, and the picture and sound of the game are transmitted to the terminal through the network, and the player can operate the game in real time through input devices (mouse, keyboard, controller, touch screen).
"Cloud Gaming" Technical Principle Explanation 1
02 After trial, the Beijing Intellectual Property Court held that:
The game involved in the case is original and should be protected by copyright law. In view of the fact that there is no classification of game works in the copyright law of the mainland, it is possible to distinguish different types of infringement and protect games as software works, or as audiovisual works for the entire running screen of the game. The "cloud game" service involved in this case is the transmission of game screens, not the transmission of software code, so it is more practical to protect game running screens as audiovisual works.
01 The copyrightability of the game and its protection method: The essence of the game operation screen is the result of the operation of the game program involved in the case, and the computer program is the driver and rule to present the content in the form of code contained in the game to the player in a certain logical picture. Therefore, from a holistic point of view, the external expression of the game being objectively perceived by others is the result of a lot of intellectual work by the game developer, and it has originality and the necessity and possibility of being protected by copyright. The Copyright Law does not clearly stipulate game works, and the copyright protection of games should still be given priority to a typological approach, and games should be classified as clearly defined types of works for protection.
02 On-demand determination of the type of game work: Game works can be protected as both computer software and audio-visual works, and the protection method should be selected in accordance with the principle of on-demand determination based on the circumstances of the specific case and the request of the copyright owner. The "cloud gaming" service involved in the case outputs rendered game running images to players, and does not transmit the code files of the game software involved in the case to the player's terminal, so from the perspective of on-demand determination, it is more appropriate to identify the game involved in the case as an audiovisual work as a whole.
03 The "cloud game" service is controlled by the right of information network dissemination: the "cloud game" service transmits information and stores content through the information network environment, the "cloud game" service provider provides the works to the players through the "cloud server", and the "cloud game" service mode is to provide the works to the users in an interactive way.
04 Liability for compensation is premised on the loss of the right holder caused by the infringement: for the infringement that does not cause the loss of the right holder, the infringer only needs to stop the infringement and does not need to bear the tort liability, and if the loss is caused to the right holder, in the absence of evidence of loss and evidence of illegal gains, it shall be determined by fully considering the multiple factors involved in the case.
In this case, there are two ways for players to obtain the game through the "cloud game" service: first, when the player did not purchase the game through Steam, he chose "I did not purchase the Steam game" to enter the service and play the game online; Second, if the player purchases the game through Steam, select "I have purchased a Steam game" to enter the service and play the game online.
"Cloud Gaming" Technical Principle Note 2
In this case, neither of the two methods provided by Company Y to players to obtain the game was authorized by NetElement Shengtang Company, which constituted infringement, but the second method of providing the game did not cause damage to WangElement Shengtang Company, so it only needs to bear the liability for damages for the first method of provision.
Screenshot of Company Y's game website
In summary, the Beijing Intellectual Property Court ruled that: (1) Company Y should compensate NetElement Shengtang Company for economic losses of RMB 400,000 within 10 days from the effective date of this judgment; 2. Within 10 days from the effective date of this judgment, Company Y shall compensate Wangyuan Shengtang Company for the reasonable expenses of the litigation in the amount of RMB 37,684; 3. Other litigation claims of NetElement Shengtang Company are rejected.
After the judgment was rendered, Company Y appealed, and the Supreme People's Court upheld the original judgment.
Judge's tip
This case provides a good answer to the legal risks arising from the development of new technologies and their judicial protection. With the development of the game industry and the iterative upgrading of game technology, the quality of game products has been continuously improved, and the audience scope of games has been further expanded, but it is also facing new risks of infringement.
Some specific issues in the development of technological innovation may not be seen by the law, and no specific and clear provisions are made, but the basic principles of fairness, good faith, public order and good customs in the Basic Civil Law provide the most general, abstract and comprehensive guidance for people's legitimate behavior, and the specific legal norms in the special laws on intellectual property rights and the anti-unfair competition law and the legal spirit contained therein, especially the technical ethics and business ethics contained therein, can be adapted for the application of new technologies and their business models. Continue to play the normative function of reasonably defining the boundaries of the legitimacy of conduct.
Starting from the existing legal provisions, this case responds to key issues such as the judicial protection of game copyright and the legal development path of "cloud gaming" through legal argumentation that is standardized, logical and developmental, and reflects that the people's courts have always had rules to follow, well-documented and rules to follow for the protection of technological innovation in accordance with the law, integrity and fairness.
Source: Intellectual Property Beijing
编辑：Sharon