Representing the First Copyright Infringement Case Involving Deep Linking
Attorney for Plaintiff/Appellant: Ping LIU
Synopsis:
Internet and related technology progress rapidly in the 21st century. Consequently, the way of infringing the copyright of musical works has become more and more Internet-related. It has become a fashion for Internet users to acquire musical works freely on line. In order to increase their click-through rate, all major websites offer some kinds of download or linking service for musical works. This leads to rampant infringements of copyrighted musical work and the benefit of the copyright owner has unprecedentedly been threatened. However, the relative slow pace of the development of law compared to new technology has made difficult for copyright owners to enforce their legal rights.
This case is an epic in this special historical period. It established a good precedent on which courts can rely to decide on subsequent cases and legislature to make network-communicating rules and regulations.
Plaintiff SME Hong Kong Limited (hereafter SME) filed a lawsuit against defendant Beijing Shijiyuebo Technoloy Co. Ltd. (hereafter Shijiyuebo), claiming that defendant communicates its musical works on line by deep-linking without permission of SME, infringing its sound recording producers' right. Copyright Law of the P.R.C. (2001) Art. 43 Cl. 2 SEM sought for a judgment that would require defendant to cease communicating the infringing musical works on line and offering download service for them. In addition, SEM sought for a damage to cover its huge revenue loss.
Beijing No. 1 Intermediate Court held that defendant commercially communicated the sound recordings produced by plaintiff on line without permission by offering to public the deep-linking of these musical works. Defendant intentionally did so and caused harm to plaintiff objectively. Therefore, his act constituted infringement of copyright and should be liable for cessation of infringement and paying the damage. Defendant argued that it merely offered the links and there is no data exchange in its server. Thus, it did not reproduce any work in its server and did not infringe plaintiff's copyright. The Court rejected such an argument.
Defendant appealed to Beijing High People's Court. However, in December 2005, Beijing High People's Court reached final decision in which defendant's appeal was rejected and the original judgment was affirmed. Beijing High People's Court (2004) Gao Min Zhong Zi No. 714
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Representing the First Copyright Infringement Case Involving Deep Linking