2010: Beijing No. 1 Intermediate People's Court: "Baidu, Sohu/Sogou Are No Copyright Pirates"

- In June 2005 Shanghai Bu-sheng Music, a branch of EMI in China, filed a copyright infringement lawsuit against Baidu. Baidu was found liable by People's Court of Haidian District in Beijing for copyright infringement in September 16, 2005. Read more about it in Rouse's China Intellectual Property Express, Issue 265 here.
- In September 2006 zeven Hong Kong music companies brought a law suit against Baidu at Beijing No. 1 Intermediate People's Court. Baidu was acquited in November, because it would be merely linking to third parties, see IP Dragon's post about it here and again Rouse's China IP Express, Issue 265 here. International Federation of Phonographic Industry (IFPI), the organisation that represented the music companies was going to appeal.

- But in early 2008 three music companies brought a case against Baidu and Sohu/Sogou at Beijing No. 1 Intermediate People's Court.

The plainiffs were:

• Universal Music;
• Sony BMG Music Entertainment Hong Kong, and;
• Warner Music Hong Kong.

However, again all defendants were cleared of the accusations. Read the Reuters article by Kate Holton here.

Marcia Ellis, Jean Zheng and Paul Weiss wrote a concise article about the 'Safe Harbour Protection in China: How China's New Regulations Protect the Information Dissemination Rights of Digital Networks'. Please take note that the "new" Regulation on Protection of the Right to Network Dissemination of Information entered into force on July 1, 2006.

The most important rule is article 23:

Article 23 Regulation on Protection of the Right to Network Dissemination of Information:
"A network service provider that provides searching or linking services to a service object, and has disconnected the link to a work, performance, or audio-visual recording infringing on an other’s right after receiving notification from the owner, shall not be liable for compensation; however, if it knew or should have known that the linked work, performance, or audio-visual recording has infringed upon an other’s right, it shall bear liability for joint infringement."

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Internet Copyright Law 2006 Difference Between Winning (Baidu) And Losing (Yahoo China)?

Although both Baidu.com and Yahoo China basically provided deep links to pirated mp3's, Baidu won in court, while Yahoo China lost. What are the differences?

7 (minus EMI) IFPI members versus Baidu.com

Wang Hongjiang of Xinhua reports about a group of record companies who lost again a lawsuit against Baidu.com (a Chinese search engine and the first Chinese company that became a component of the NASDAQ-100, read here), because of alleged copyright infringements.

• In 2005 the group, represented by IFPI, consists of EMI, SONY BMG, Warner Music, Universal Music, Cinepoly, Go East and Gold Label, "accused Baidu.com of engaging in illegal downloading and playing 137 pieces of music (195 sound recordings, according to IFPI, read here IP Dragon) owned by the record companies online without their permission." The demands by the group were a public apology from Baidu, the suspension of its download service and compensation of 1.67 million yuan (226,000 U.S. dollars);
• November 2007, Beijing's First Intermediate Court ruled "that Baidu's service, which provides web links to the music, does not constitute an infringement as all the music is downloaded from web servers of third parties."
• December 30, 2007, the People's High Court of Beijing agreed with Beijing's First Intermediate Court and ruled that Baidu's service does not constitute an infringement.

Read Wang Hongjiang's article here.

If you cannot beat them join them

John Liu and Jannet Ong reported for Bloomberg News that EMI dropped the appeal and joined Baidu, read here.

7 IFPI members versus Yahoo China

• April 2006, IFPI, on behalf of the 7 members asked Yahoo China to take the necessary stepts to stop the copyright infringement. Negotiations between Yahoo China and IFPI took place, but Yahoo China, according to IFPI, walked away from those talks;
• January 2007, IFPI filed a lawsuite at the Beijing No. 2 Intermediate People's Court against Yahoo China; Eleven separate claims were brought against Yahoo China by local and international record companies, who presented evidence of widespread infringement of their copyrights. The claims filed concerned infringement of tracks by international artists such as U2 and Destiny’s Child, as well as local repertoire performed by singers such as Penny Tai and Kelly Chen;
• April 2007, Beijing No. 2 Intermediate People's Court ruled Yahoo China was found liable for facilitating copyright infringement; Yahoo China appealed to the Beijing Higher People's Court;
• December 20, 2007, the Beijing Higher People’s Court, upheld the verdict.

Mr John Kennedy, Chairman and CEO of IFPI said:

“We are disappointed that the court did not find Baidu liable, but that judgment was about Baidu’s actions in the past under an old law that is no longer in force. The judgment is irrelevant since it has effectively been superseded by the Yahoo China ruling. Baidu should now prepare to have its actions judged under the new law. We are confident a court would hold Baidu liable as it has Yahoo China." Read the IFPI press release here.

China is no Common Law country and the final court, in this case the Beijing Higher People's Court, is not bound by precedent. Music 2.0, which is "exploring chaos in digital music" doubts whether Mr Kennedy's "old law" is no longer in force. Music 2.0 quotes Chinese lawyer Yu Guo Fu who said on Sina:

“Even though the Provisions of Copyright Protection regarding Transmissions through Digital Networks (Internet Copyright Law 2006) was introduced in July 2006, it is not the underlying reason for the different results in both the Yahoo and Baidu cases. Fundamentally, the higher level Copyright Law and also the General Principles of the Civil Law were unchanged throughout both cases and that has been the basis for both rulings”. Read Music 2.0's article here.

Other factors that could explain the differences between the outcomes is whether there was sufficient evidence for direct and/or contributory infringement.

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Yahoo! China Ruling Shows Responsibility Sites For Removing Infringing Material

Remember the story about the allegations of copyright infringements (mp3 and ringtones) against Yahoo! China by the International Federation of the Phonographic Industry (IFPI), in March, 2006? Read here.

The case was heard by the Beijing No.2 Intermediate People's Court on 10th April 2007. The judgement was delivered on 24th April 2007.

IFPI filed 11 separate claims for an injunction and damages against the Chinese internet search engine Yahoo! China on behalf of of EMI Group Hong Kong Limited, EMI Records Limited, EMI Taiwan Limited, Go East Limited, Mercury Records Limited, Sony BMG Music Entertainment (Taiwan) Limited, Sony BMG Music Entertainment , Universal International Music B.V, Universal Music Limited, Warner Music Hong Kong Limited and WEA International Inc.

IFPI's Chairman and Chief Executive John Kennedy made a statement on the site of IFPI which includes:

"The Beijing Court has confirmed that Yahoo! China has clear responsibility for removing all links to the infringing tracks on its service. Since this is a judgment made under new regulations in China, today’s judgment supersedes the previous decision on Baidu and confirms the responsibility of all similar music search providers in China."

Read Kennedy's statement here.

UPDATE:

On request Alex Jacob of IFPI supplied me with the relevant regulations. Thanks a lot Alex.

Art.14, Art.15, Art. 23 of the Regulation on Protection of Dissemination Right through Information Network (July 2006). Therefore, the Defendant is jointly liable for the infringement.

Article 14
Where a right owner considers the works, performances, sound recordings or video recordings with which the service provided by a network service provider who provides information storage space, searching or linking services is concerned infringing his right of communication through information network, or that his electronic right management information on such works has been removed or altered, he may request network service providers, by submitting a written notification, to remove such works, performances, sound recordings or video recordings, or to disable the access to these works, performances, sound recordings or video recordings. The notification shall include the following contents:
(1) the name (appellation), means of contact and address of the right owner;
(2) the title and network address of the infringing works, performances, sound recordings or video recordings which are removed or the access is disabled on\nrequest of the right owner; and (3) the primary probative materials for the infringement.
The right owner shall be responsible for the truthfulness of the notification.

Article 15
The network service provider shall, upon receipt of the notification from a right owner, expeditiously remove or disable the access to the works, performances, sound recordings or video recordings that are claimed to be infringing, and at the same time transfer the notification to the subscriber who provides the works, performances, sound recordings or video recordings; where the notification cannot be transferred or the network address is not clear, the network service provider shall make public the content of the notification on the information network.

Article 23
Where a network service provider that provides searching or linking service to its subscribers, disconnect the link from (disable access to) the infringing works, performances, sound recordings or video recordings upon receiving the right owner’s notification according to these Regulations, it does not assume liability for compensation; where it knows or has a reasonable grounds to know that the linked works, performances, sound or video records are infringing other person’s right, it shall assume the liability for joint infringement.

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Baidu Acquitted Of Charges By HK Music Companies Of Copyright Infringements

In September seven Hong Kong music companies brought against Baidu, the largest search engine of China, a copyright infringement lawsuit. Beijing No.1 Intermediate People's Court ruled that the accusations did not have adequate legal support.

The seven companies were:
Universal Music Hong Kong Limited;
Go East Entertainment;
Warner Music Hong Kong Limited;
Sony BMG Music Entertainment (Hong Kong) Limited;
EMI Group Hong Kong Limited;
Cinepoly Music and Gold Label Entertainment.

The music companies, represented by the International Federation of Phonographic Industry (IFPI), accused Baidu of providing and spreading pirated versions of 137 songs for which the record companies hold copyrights through http://mp3.baidu.com, which enables Internet users to search and download music on the Internet. They were seeking a total of RMB 1.67 million (USD 208,750) in compensation, a public apology, and for Baidu to cease facilitating downloads of pirated music.

"During the hearing Baidu argued that it never uploaded any music or songs to its own servers, nor provided any music downloads to users. The company iterated that it was just an online search platform that provided search results according to the input of users. Its "MP3 Search Service," is just one of its search services, and is not much different than the other services it offers, the company said."

IFPI's Benjamin Ng said they would definitely appeal to a higher court. To be continued.

Read more in an article of Interfax China here.

Baidu "strong on censoring, weak on copyright enforcement" here.

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