Mobile Internet Copyright wars: Application Stores cannot apply Haven principles

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After Mo Yan won the Nobel Prize, the app for Mo Yan's works flocked out, but mostly pirated apps. (TechWeb map)

The smoke of the copyright war has spread from the internet to the age of mobile internet.

After Mo Yan won the Nobel Prize, an app named Mo Yan's novel featured []HD] lives first in the App Store's free list. However, this app does not indicate whether to obtain the authorization of the author, netizens commented that the interface is not clear enough, built-in ads, which "abundant milk fat buttocks" is the probation version, each chapter is incomplete, and a large number of typos, questioning is pirated app.

Search for "Mo Yan" in Pea pod, related app nearly 40.

Prior to this, the mobile Internet copyright war has begun, the two sides are copyright and channel side: The encyclopedia sued Apple for compensation of 520,000 Yuan, the Chinese writers activist league sued Apple trial. In China, the Chinese online to the major application shop to send a letter of attorney, claiming tens of thousands of dollars; some app stores have shelves for copyright issues, and well-known reading software Zaker has canceled some of its sources.

The copyright of mobile Internet content is still in the grey area, but with the development of the industry and the attention of the rights holders, the infringing content will be shuffled and the copyright of the video should be redirected, a reading personage said.

Read Copyright gray Zone

Both the Apple App Store and the domestic Android app market are rife with pirated content.

There are a group of app developers who choose the current hot books and make them into the app Store without the author's authorization or even a paid sale.

Amateur developer Xiao Zhang has been working on an ebook app since early last year. His business model is as follows: Select the current popular books to make E-book app, after Apple audit online app Store. Half a month-1 months later, a letter from the copyright party to Apple will be received, accusing it of infringement. Next, the two sides argued, Zhang will let the other party to produce copyright evidence, if the other party to show evidence, means that the app debate failed, will be apple down the shelf.

At present, he developed 95% of E-books have been apple under the shelf, but, in this half month-1 months of "security period", he had a monthly sum of 20,000 yuan. The threshold for an ebook app is not high, so there are not a few developers involved in the business.

At home, most app stores take the "Notify after deletion" strategy. Application store development early, want to fill more content, audit bias loose. For the Reading app, the App store usually chooses the shelves first, and if any of the authors object to it, put it down.

Fangfang, director of Chinese online law, said that at present in the major application markets (such as Apple Stores, etc.) have a lot of pirated electronic books, the Chinese "online Anti-Piracy alliance" has been in these areas have launched a campaign of rights, which sued Apple infringement case, has been in the proceedings.

In the subscribing industry, an industry personage who declined to be named said the company would negotiate copyright issues with the copyright owner to let the other party know and reach an agreement, but did not disclose whether to pay for the copyright and the amount. "The current mobile internet copyright is in the gray area, everyone is not ' clean ', the current status and the same as in previous years of video." ”

Sue App Store for landmark cases

Pirated reading reached its peak in 2011. This year, two big cases became the App Store landmark case:

First, the encyclopedia tells Apple that it has been compensated by 520,000. The court held that, based on the facts identified, the operator of the app store could be identified as Apple. Applications purchased and downloaded by users in the App Store "China Encyclopedia" (Jianfan) should be the infringing application. Since Apple cannot prove that the application was developed by a third-party developer, it should be determined that Apple has developed it itself. Even if the application is developed for Third-party developers, Apple has been involved in the development process of the application involved, selected the application and decided on its own distribution on the App Store, while profiting from the sales gains, and in fact the joint tort with the third party, still constitutes a joint infringement. The court tried to stop the infringement and compensate the large encyclopedia 520,000 yuan.

Second, the Chinese Writers activist League started a lawsuit against Apple last October, and so far 13 writers, including Han, mu Murong and Li, sued the court, involving 59 works, and claimed a total of more than 23 million. In January this year, the second Intermediate People's Court of Beijing formally accepted the lawsuit against Apple by the Chinese Writers Rights Alliance. The case was rejected by the court after the company filed a jurisdictional objection, which was not pronounced until October 12 this year.

Yunting, an intellectual property lawyer at the Big Bang law firm in Shanghai, says the two major cases have two meanings:

One is the jurisdictional question. The interpretation of the Supreme People's Court on several issues concerning the application of law in cases involving computer network copyright disputes stipulates that "the case of copyright infringement of the network is governed by the tort or the court of the defendant's domicile." The tort includes the location of the network server, computer terminal and so on to carry out the infringement act. Where it is difficult to determine the location of the infringement and the defendant's domicile, the plaintiff discovers the place of the computer terminal such as the infringing content can be regarded as the infringing action. "Judging from news reports, Apple claims that its servers are in the United States, but that the court has jurisdiction over" the computer terminals where the plaintiff found the infringing content ", on the ground that it is" difficult to ascertain the infringement and the defendant's domicile ".

In this way, this means that in future courts in various parts of China will be able to govern the App Store tort case (as long as the plaintiff is notarized locally), unless Apple can disclose its servers in China and disclose the location.

The second is the application of the law of App Store. According to press reports, the court found that the app was developed by Apple itself. and "Even if the application is developed for Third-party developers, in view of the company's involvement in the development of the application involved, the selection of a third party development completed application and its sole determination of its distribution on the App Store, while profiting from the proceeds of sales, have in fact committed a tort with a third party, Still constitute a joint infringement, Apple should also bear the corresponding legal liability. ”

Thus, the court found that the App Store business model could not be applied to the "safe haven principle", which means that the right person can be prosecuted without prior "notice" as long as they find the infringing content in the App Store.

But it is not easy for copyright owners to sue Apple. "The biggest hurdle in the lawsuit is Apple in the United States, which has to sue it for a pre-certification procedure, a notarized and consular-certified American Apple registration, and the cost and time costs are high." "Yunting said.

At home, the issue of reading app copyright is getting more and more attention. It is reported that the major application market received digital publishers Chinese online lawyer letter; Reading software Zaker recently canceled some of the information sources; Some app stores have a pirated E-book app.

"In addition to the App Store, the right to sue the domestic application store is relatively easy to benefit from our country's strict control of the Internet industry, the right person can easily through the Ministry of the filing system inquiries to the application store open s, and determine the defendant." The difficulty of this kind of lawsuit is that the compensation amount of copyright infringement cases is generally lower in domestic courts, which leads to the low desire of rights holders. "Yunting said. #p # subtitle #e#

Unable to pass the safe haven Principle Disclaimer Store should perform "duty of care"

In the copyright war, what kind of obligations should the application store fulfill?

"Most application stores for Third-party uploaded applications, the basic will be audited, although it is claimed that the audit content does not include copyright, but for some obvious infringement content (such as the complete works of Jin Yong, Cologne and other applications), the application store should perform ' Duty of care ', such as its permit such applications on the line, is not exempt from the safe haven principle, should be with the application of the developer to assume joint tort liability. "Yunting said.

Since the second half of last year, Apple has increased the scrutiny of app reading, according to developers. "When I first started doing the ebook app last year, I released 10 copies of it, and Apple was able to review it in 1-2 weeks, and in the second half, I made all 10 copies, and all the apples refused, saying I was a garbage application." Around November last year, only 2 copies were released at a time, and the period of audit was very long, often in 3-4 weeks. "Apple's efforts to crack down on piracy are also intensifying," said Xiao Zhang, the developer. In the first half of last year, I did not receive a letter of attorney, but in the second half, I can basically receive several emails a week, more this year. "Now he has stopped the development of E-book apps.

Because of the case against Apple, the domestic app Store has also stepped up its scrutiny. Shangcong, co-founder of the application, said in an interview with TechWeb, the copyright party's series of requirements is very correct and reasonable, the application of the recent clean up a batch of copyright problems in the app, but also increased the audit efforts, now developers to submit reading apps need to issue a copyright certificate, otherwise not shelves.

In addition, wood ants and other application markets have refused to audit through the copyright-free E-book type app, genuine electronic books such as from the Cloud bookstore E-book logo will be labeled "cloud" logo.

"The authors hope to get more readers, developers can output research and development capabilities, the application market want to get more content." The application market as the issuer, can help the author and the developer matchmaking, the formation wins the situation. Shangcong also said that the application of the plan and the copyright party to launch the official ebook, however, because it is a start-up company, taking into account the problem of financial resources, has been delayed.

Will go back to the video copyright road

Industry insiders believe that the current mobile Internet content is in the gray zone, the future or the path of the video copyright.

Review the initial development of the video site, because there is not enough money to buy authentic film and television dramas, relying on users to upload film and television video to attract traffic, can not guarantee the copyright of the video. Rely on users to upload, you can use the "safe haven" principle to escape the first responsibility of the sanctions, video sites fearless, wandering in the gray area.

Since 2008, China's network video to the legitimate. 2009, Sohu and other websites set up "China Network video anti-Piracy alliance", the prosecution of infringing video sites. In the anti-piracy process, even occurred in Youku, potatoes, cool 6 and other video sites to prosecute each other phenomenon. Today, the network of video authenticity has become the mainstream of industrial development.

Yunting said: "As before the internet has just started, the application store or application of the developers to the legal risk of copyright has not been enough attention, but personally think it is a necessary process." With the development of the industry and the attention of the right person, the infringing content will be shuffled. ”

At present, the mobile Internet copyright War subject is the copyright party and the channel side (application store). Refer to the video Copyright War Road Surgery, in the foreseeable future, reading applications between the war or will be launched.

Legal interpretation:

1, a number of Chinese writers to sue Apple, the encyclopedia to tell Apple compensation 520,000, how do you think of such cases?

Yunting: A personal view of the iconic case for the Apple App Store, the main significance is the following two points:

(1) Jurisdictional issues

The interpretation of the Supreme People's Court on several issues concerning the application of law in cases involving computer network copyright disputes stipulates that "the case of copyright infringement of the network is governed by the tort or the court of the defendant's domicile." The tort includes the location of the network server, computer terminal and so on to carry out the infringement act. Where it is difficult to determine the location of the infringement and the defendant's domicile, the plaintiff discovers the place of the computer terminal such as the infringing content can be regarded as the infringing action. "Judging from news reports, Apple claims that its servers are in the United States, but that the court has jurisdiction over" the computer terminals where the plaintiff found the infringing content ", on the ground that it is" difficult to ascertain the infringement and the defendant's domicile ". In this way, this means that in future courts in various parts of China will be able to govern the App Store tort case (as long as the plaintiff is notarized locally), unless Apple can disclose its servers in China and disclose the location.

Article Application of law in App Store

According to press reports, the court found that the app was developed by Apple itself. and "Even if the application is developed for Third-party developers, in view of the company's involvement in the development of the application involved, the selection of a third party development completed application and its sole determination of its distribution on the App Store, while profiting from the proceeds of sales, have in fact committed a tort with a third party, Still constitute a joint infringement, Apple should also bear the corresponding legal liability. "The court found that the App Store's business model could not be applied to the" safe haven principle ", which means that the right person can sue without prior" notice "if he finds the infringing content in the App Store.

2. Apple's online store is claiming to be a registered Apple subsidiary of Luxembourg, Itunessarl, in which case should Apple be held responsible?

Yunting: Although Apple claimed that the app store operator was Apple's subsidiary, the court still decided that Apple was the operator of the Itunessarl, possibly because Apple did not provide sufficient evidence. We also note that the App Store site is actually set up on the www.apple.com of Apple's name.

In fact, even if Apple is able to provide sufficient evidence to prove that the App store operator is Apple's itunessarl, there is no barrier to the rights holders, but only the defendant can be changed to the company, because, according to the Court of thought, jurisdiction is through " The plaintiff discovers the location of the computer terminal such as the infringing content as the basis, changes the subject of the lawsuit, does not affect the domestic court to have the jurisdiction, and as Apple subsidiary, its solvency should not have the question.

3, if Apple will be involved in the work has been deleted in time, whether it also constitutes infringement? In one case, when the app is submitted with no pirated content, and so after the application store audit, but will send pirated books from the server side, in this case, the application store to bear what kind of responsibility?

Yunting: "Post-deletion exemption" is only applicable if the network service provider complies with the "haven Principle", as previously mentioned, the APP store does not apply the "haven principle".

As for the latter issue to be analyzed according to the specific situation, the individual thinks: if the application itself is not infringed, and there is no obvious "infringing use" appearance, and the software itself is free, then apple to the infringing content can enjoy the "safe haven principle". For example, the App Store in the "Youku" application, because the cool application itself free, and the content of the chain is basically "genuine", if the "Youku" application of the chain of objects in the infringing content, then Apple can enjoy the "safe haven principle" exemption.

4, the current application stores are pirated E-books, application stores should do what responsibility?

Yunting: Most app stores for applications uploaded by third parties, basic will audit, although it claims that the audit content does not include copyright, but for some obvious infringement content (such as the complete works of Jin Yong, Cologne, and other applications), the application store should fulfill the "duty of care", such as its allow such applications online, is unable to pass the Haven principle exemption, should with the application developer undertakes the joint tort responsibility.

5, in the face of these violations, copyright protection of the right to face what difficulties?

Yunting: In addition to the App Store, the right to sue the domestic application store is relatively easy, benefiting from China's strict control of the Internet industry, the right person can easily through the Ministry of the record query system query to the application store developer, and determine the defendant. If you really want to say this kind of litigation difficulties, may be the current domestic courts on copyright infringement cases of the general low compensation, resulting in the rights of people to defend the desire is not high.

Note：

The

Safe haven principle means that when a copyright infringement case occurs, when the ISP (Network service provider) only provides space services, does not produce web content, if the ISP is informed of infringement, there is the obligation to delete, otherwise it is considered infringement. If the infringing content is not stored on the ISP's server and is not informed about which content should be deleted, the ISP will not be liable for infringement. Later, the Haven principle was also used in search engines, networked storage, online libraries and so on. The Haven principle consists of two parts, "Notice + removal" (Notice-take down procedure)