MCSC v. Baidu: The First Triumph of Musical Works Copyright Owners against Baidu  
   
Attorney: Ping LIU  
   
Synopsis:  
   
The Music Copyright Society Association (MCSA) brought an action against Baidu, Inc. (Baidu) in 2008, claiming that Baidu infringed its members’ copyrights by providing online search service for lyrics of their copyrighted musical works. In 2010, Beijing Haidian District Court found against Baidu, who later appealed. Recently, Beijing No. 1 Intermediate Court has reached a final decision, in which the District Court’s decision is affirmed.  
From 2005, MCSA has frequently received claims from its members, asserting that Baidu infringing their copyrights by providing streaming and downloading service of their musical works on its website. MCSA tried many times to address this issue with Baidu, however, Baidu refused to talk about it. Therefore, MCSA filed this lawsuit against Baidu at Haidian District Court. MCSA randomly selected lyrics of 50 songs through the Baidu websites, seeking a judgment to cease Baidu’s infringing acts and a damage of 500’000 yuan for these 50 songs.  
Baidu argued that it did not provide lyrics through its search engine service. The lyrics showed up on its website was a "snapshot" of a third party website. Therefore its search service did not constitute an infringement. Meanwhile, Baidu disconnected the links to the allegedly infringing lyrics as soon as it received the notice of this lawsuit. It did not infringe the copyrights intentionally and did not cause any loss to the copyright owners; therefore, it should not be liable for the damages. At trial, MCSC counterargued that Baidu’s acts were not merely providing online search service but a direct infringement of copyrights of the lyric works. Baidu reproduced and uploaded full-text lyrics onto its own server through a so-called "snapshot" process. Thus, the lyrics showed up on its website were no longer embodied on a third party’s server but on Baidu’s. Moreover, the lyrics on Baidu’s website played synchronously while the songs were streaming, and could be downloaded and distributed as well.  
Haidian District Court found in favor of MCSC, holding that Baidu ceases providing lyrics of the 50 songs on its website through the "snapshot" process and pays for the 50’000 yuan damage and 10’000 yuan attorney fee to MCSC. Baidu appealed to Beijing No. 1 Intermediate Court afterwards.  
The Appellate Court contended that search engine service should not provide to users directly with contents of a third party’s website. According to evidence submitted by both parties, Baidu reproduced the full-text lyrics on its own servers and provided them to users as "snapshot" so that users did not have to attain this information from the third party websites at all. The Appellate Court recognized that Baidu’s unauthorized acts infringe copyright owners’ right of reproduction (COPYRIGHT LAW (2010), Art. 10 (5)), and right of communication of information on networks (COPYRIGHT LAW (2010), Art. 10 (12)).   
The Appellate Court held that the facts were clearly ascertained and the law was correctly applied in the original judgment. The amount of the monetary damage was reasonable, taking into account factors such as the amount of lyric works that Baidu illegally copied, the reputation and influence of the authors of those lyric works, and the nature of Baidu’s act, etc. Accordingly, the Appellate Court found that the appeal shall be rejected and the original judgment shall be affirmed.  
It is reported that copyright owners from the musical industry have constantly accused Baidu of infringing their copyrights by illegally reproducing and communicating their copyrighted musical works in MP3 format through its online search engine. Unfortunately, thus far, they have not been able to prevail on law cases against Baidu for certain reasons. The MCSC case is the first triumph of musical works copyright owners against Baidu. It has become one of the landmark cases in judicial practice of protecting musical works copyrights in China’s Internet.