"Deyun She B Un-year Sealing Celebration 2016" is hilarious
On February 1, 2016, "Deyun Sheyi Yi Wei Nian Sealing Celebration 2016" (hereinafter referred to as the program involved in the case) was staged at the Beijing Exhibition Center Theater, which not only brought wonderful performances to loyal fans such as crosstalk and sketches, but triggered a lawsuit by "Youku" to sue "Station B" in court. Station B lost the case!
Youku
On November 14, 2005, Youku Network Technology (Beijing) Co., Ltd. (hereinafter referred to as Youku Company) was registered and established, at present, Youku Network supports PC, TV, mobile three major terminals, with copyright, self-made, co-production, self-channel, live broadcast and other content forms, Youku Company is the operator of Youku Network.
Station B
On June 26, 2009, the "Bilibili" website (hereinafter referred to as "B Station") was created, which is a humanistic community and video platform that highly gathers young people, with books and comics, dramas, national creation, music and other content, and opens live broadcasting, game centers and other business segments. Shanghai Phantom Power Information Technology Co., Ltd. (hereinafter referred to as Phantom Power Company) is the operator of Station B and the developer and operator of the Android client of the website.
First court meeting
In 2016, Youku purchased the program involved in the case and obtained the exclusive information network dissemination right of the program involved in the case. After it was found that it used an Android mobile phone to download the "Bilibili Animation" Android client, after installation, search for "Deyun She's unboxing", the first search result showed the program involved in the case, the cover picture had the name of Deyun Society, and the front line below it was three videos, and the content of the three videos was played continuously, which was the content of the complete program of Youku Company. Youku Company believed that the above-mentioned acts of Phantom Power Company seriously infringed its legitimate rights and interests, so it sued Phantom Power Company to the Haidian District People's Court of Beijing Municipality, requesting the court to order Phantom Power Company to compensate for economic losses and reasonable expenses totaling 200,000 yuan.
Phantom Power Company argued: it is a network service provider, Station B is a short video sharing website, uploaded by users, the right side of the program page involved in the case displays the uploader information, the label is also set by the user himself, and it is difficult for the Phantom Power Company to notice. The program involved in the case has not been edited by the magic power company, there is no classification, the safe harbor principle should be applied, Youku company deleted without prior notice, and the magic power company should not bear the infringement liability.
After trial, the Haidian District Court held that Youku Company obtained the exclusive information network dissemination right of the program involved in the case through authorization, and Phantom Power Company failed to fulfill the corresponding duty of care, and its behavior infringed Youku's exclusive information network dissemination right. Accordingly, phantom power company was ordered to compensate Youku company for economic losses and reasonable expenses of 100,000 yuan.
Second court clash
Unsatisfied with the first-instance judgment, Phantom Power Company appealed to the Beijing Intellectual Property Court, which held that the amount of compensation in the first instance was too high, and station B, as a video platform, should apply the notice deletion rules.
The Beijing Intellectual Property Court held that the magic power company hosted and operated the app involved in the case belonged to the network service provider, and only if it should know or knew that the network user used the network service to infringe on the right of information network dissemination of others, it should bear legal liability. In this case, the three videos were the entire content of the program of the period that was played continuously, and each video had a long playback time, and the name uploaded by the user was similar to the main part of the program content. It can be inferred that the phantom power company should be able to reasonably understand that the network user provided the works, performances, audio and video recordings involved in the case without the permission of the right holder, and the phantom power company did not submit contrary evidence, so the court of first instance found that the phantom power company failed to fulfill the corresponding duty of care, and there should be a situation in which the network user should know or know that the network user used the network service to infringe the right to information network dissemination.
However, Youku Company did not provide sufficient evidence to prove its actual losses, nor did it have sufficient evidence to prove the illegal gains of Phantom Power Company, and the court of first instance did not improperly adopt the method of statutory compensation. Therefore, the court of second instance rejected the appeal and upheld the original judgment.
"Safe Haven Principle"
Phantom Power Company claimed the application of the "safe harbor principle", but was not supported by the court.
The "safe haven principle" originated from the Digital Millennium Copyright Act (DMCA Act) enacted in the United States in 1998, also known as "notice + takedown". Mainly refers to the fact that after receiving the notice from the right holder, the network service provider shall take treatment such as deleting, blocking or disconnecting the links of the allegedly infringing works within a certain period of time. Where network service providers take the above measures and fulfill their duty of care, they may be exempted from liability for compensation.
China's Tort Liability Law and the Regulations on the Protection of the Right of Communication on Information Networks have introduced the "safe harbor principle", that is, the processing process of "notice- delete - transfer - counter-notification - restoration". If the network service provider does not have "knowing" or "should have known" about the relevant infringing content, there is no subjective fault, and the infringing content is promptly deleted after receiving the notice, it shall not bear the infringement liability. However, because the three videos involved in the case were all the contents of continuous playback, and each video played for a long time, and the name uploaded by the user was similar to the main part of the program content, the court based on this inferred that the phantom company "should have known" or "knew" that the network user had not obtained relevant authorization to upload the video, and Shanghai Phantom Power Company failed to fulfill the corresponding duty of care and could not be exempted from compensation liability.
Risk prevention and control of network service providers
Xiaobian believes that the "safe haven" spread by the information network is not a panacea for network service providers to be exempted from liability. Network service providers should be vigilant and actively take measures to strengthen the review of video ownership and sources to avoid the legal risk of huge compensation.
Editor: Luo Wenwen
Editor-in-Chief: Wei Jiaxin
The pictures in this article originate from the Network, if there is any infringement, please contact to delete
Please indicate the source when reprinting or quoting this article
Resources:
1. (2020) Jing 73 Min Zhong No. 260.
2. Lu Bei, "The Application of the Safe Harbor Principle to Patent Rights", Wolters Kluwer's First Legal Information Repository.
3. Youku and Station B got into trouble with the court, what happened? WeChat public account: "China Intellectual Property News".
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