By Luo Yanjie
Recently, a reporter of TechWeb interviewed You Yunting of our website about issues of Apple providing infringing content as follows:
1, Lots of China writers have sued Apple Inc because its App Store violated their copyright; Encyclopedia of China Publishing House (EPCH) win the case and get 520,000 as compensation. How do you see this kind of cases? Can it become the flag case of mobile Internet copyright?
Personally think it is more suitable to say that it is a flag case for APP Store of Apple, the main significance is as follows:
?(1) Jurisdiction
?Legal interpretation involving copyright disputes over computer network by The Supreme People?s Court? provides that
?the network copyright infringement cases? jurisdiction is the court at the domicile of the defendant or the place of the act of infringement. The place of the act of infringement includes the place of the network server, the computer terminal or other equipments. If it is difficult to determine the domicile of the defendant or the place of the act of infringement, the place of the computer terminal used by plaintiff to discover infringing content can be considered as the place of the act of infringement.?
From the news reports, for the objection of the jurisdiction, although Apple claims its servers are in the United States, but the court still decide the jurisdiction at ?the place of the computer terminal used by plaintiff to discover infringing content can be considered as the place of the act of infringement? because ?it is difficult to determine the domicile of the defendant or the place of the act of infringement?. According to this, it means that any court in China can have jurisdiction of Apple?s infringing cases in the future (as long as the plaintiff make the notarization in local), unless Apple disclose where there server is in China.
?(2) Legal application of APP Store
According to the news report, the court held that: APPs should be found developed by Apple. And ?Even if the APP is developed by the third party, in view of Apple participated in the process of development and distribution and got profit. Apple infringed right people with the third party together. Apple constitutes a common tort and shall bear the corresponding legal responsibility.? Thus, the court believed that APP Store?s is not applicable with ?safe harbor principle? which means as long as the right people discover infringing content in APP Store, it can be charged without the need for prior notification?.
2, Apple declared that the operator of App store is their Subsidiary registered in Luxemburg, iTunessarl. In this case, dose Apple need to bear any responsibility?
Although Apple claims that APP Store?s operator is iTunessarl, but the court still finds the App Store?s operator is Apple itself. This may be due to that Apple did not provide sufficient evidence. At the same time we also noticed that App Store?s website is also under the domain name www.apple.com owned by Apple.
In fact, even if Apple can provide sufficient evidence to prove that APP Store?s operator is iTunessarl, it won?t bring many obstacles to right people. Right people only need to change the defendant. According to the court, jurisdiction is decided by the place of ?plaintiff found infringing content?. After changing the defendant, it does not affect the domestic courts having jurisdiction. As Apple?s Subsidiary, iTunessarl should have enough money to pay.
3, If Apple removes infringing content in time, will they constitute infringement? If when APP submitted with no pirated content, but though the APP, it can get pirated content, should APP Store bear responsibility?
?Exemption after Delete? is only applied for the network service provider when the situation meets the ?safe harbor principle?. As mentioned above, APP Store cannot be applied with ?safe harbor principle ?.
As to the second question, the author think: if the APP itself does not have infringing content and has no obvious ?infringing uses? appearance, and is free, then Apple can enjoy ?safe harbor principle?. For example, The ?YouKu? App is free and used for spreading authorized works. While, if there are infringing content could spread by it, Apple can enjoy ?safe harbor principle?.
4, At present, there are lots of the pirated ebooks in all kinds of app store, do they need to bear responsibility?
Most App Store will review the Apps uploaded by the third party. Although they claim they will not review the copyright, but for some obvious infringing content (Apps such as ?complete works of Jin Yong?, ?complete works of Gu Long?), the app store shall perform the ? attention obligation?. If it allows the App online, they cannot be exemption though ?safe harbor principle? but should assume collective tort liability.
Other recommended posts on our website:
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3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China?s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU?s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
Lawyer Contacts
You Yunting
86-21-52134918
youyunting@debund.com, yytbest@gmail.com
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