Bookoo,Inc (plaintiff) v. Beijing Xun Neng Internet Co.,Ltd (defendant) and Tom.Com Ltd (defendant)

 

 

 

This court, after filing the case of infringement upon exclusive right of use of works Bookoo v. Beijing Xun Neng Internet Co., Ltd and Tom. Com Ltd, has duly formed a collegial panel and held a public trial. Attorney of plaintiff Bookoo, Gao xiqing, Huo Ligang, as well as attorney of defendant Beijing Xun Neng Internet Co., Ltd and Tom. Com Ltd, Yu Mingyan, Hu Ronghui, appeared at the court for debate. The hearing of the case has now come to an end.

 The plaintiff alleges that the plaintiff entered into a contract for copyright use license with Zhou Jieru, writer of works <Let’s Do Something>，<Good Activist> (both are collections of novels) and were authorized the exclusive right to use her works on the global by way of electronic publications, such as internet, VCD, disk, etc. The plaintiff, being authorized an exclusive right of use, has found that the defendant Tom. Com Ltd published 26 pieces of the above two collections on its own web, to which the plaintiff claims exclusive right of use, and that the works were provided by Xun Neng. The acts of two defendants has infringed upon the exclusive right of use of the plaintiff and caused damages to the plaintiff both in material loss and in its good name. For these reasons, the plaintiff claims that defendants stop acts of infringement, and make a public apology to plaintiff, and jointly pay monetary damages in the amount of RMB 42620, and bear the cost of this lawsuit.

 Defendants Xun Neng and Tom argue that entrusted by Tom, Xun Neng entered into < The Contract for Literature Channel and Cooperation in Cultural Activities> with Beijing Today’s Focus Culture Development Center, for the purpose of jointly programming and designing literature channel and other channels for Tom and conducting related culture activities. According to provisions of collateral obligations in the contract, Tom’s web was connected to the web of Today’s Writers owned by Today’s Focus Center. The works of Zhou Jieru in this lawsuit were published on the web of Today’s Writers. Tom’s web was only linked to pages on which the works of Zhou Jieru are published, but not published her works, for these reasons, the act of the two defendants did not constitute infringement upon rights of the plaintiff, the court should dismiss the plaintiff’s claims.

 Upon investigation, the court has found that: Bookoo entered into <The Contract for Copyright Use License> with Zhou Jieru. According to provisions of the contract, Zhou Jieru authorized Bookoo the exclusive electronic copyright of the authorized works on the global in 6 years after signing the contract. The authorized works listed in the contract included the two collections in this lawsuit: <Let’s Do Something>，<Good Activist>. On Jan. 6, 2000, Zhou Jieru issued an authorization letter to Bookoo, in which Zhou Jieru stated specifically the scope of authorization. As the exclusive licenee on the global, Bookoo had exclusive electronic copyright of the authorized works, and Bookoo may publish the works by digital means, or may print, reproduce, transfer, publish, broadcast, exhibit the works by electronic publications, and use freely the works by the means now existing or by the electronic or digital means appearing in future as technology develops. Zhou Jieru showed no intention to authorize to the other third party in the letter.

 On June 1, 2000, Xun Neng entered into <The Contract for Literature Channel and Cooperation in Cultural Activities> with Today’s Focus Center for jointly programming and designing literature channel and other channels for Xun Neng-related web. Both parties reached an agreement on the specific contents and manners of cooperation in the contract. It is provided in the collateral clause that Xun Neng and its holding company would indicate that Today’s Writers is its partner of literature channel on the remarkable space of literature channel of Xun Neng web and interlinked the two webs. Today’s Focus Center guaranteed that signing and executing the contract would not infringe upon rights of any third party or breach a contract with any third party, nor would cause Xun Neng or its web assume liabilities for any third party. Both parties did not make stipulation on specific works of cooperation. “Xun Neng-related web” or “Xun Neng web” mentioned in the contract signed by Xun Neng and Today’s Focus Center is Tom web. Tom has exclusive copyrights to the contents of its web.

 Xun Neng and Today’s Focus Center stipulated in the contract that both parties cooperated to program chinese literature channel on the simplified chinese version web(www.cn.tom.com) of Tom web (www.tom.com). Of chinese literature channel, there is a special channel known as “Little Spirit: Zhou Jieru’s Web”, in which table of contents of the two collections of novels, <Let’s Do Something> (Zhu Hai Publishing House)，and <Good Activist> (Hua Wen Publishing House) were uploaded on the WebPages, below the page of table of contents were marked “The contents of this channel are provided by Today Writers Web”. Under the catalogue of <Let’s Do Something>, listed are names of 12 novels: <Talking as Light On>, <Accompanying when Light Off>, <Flying>, <Fish>,<In Disorder>, <Do You Feel Pain>,< Let’s Do Something >,<Lyricing Times>,<Midnight>,<Premeditation>,<The Fragrance of Meat>, and <As Free As Divorce>. Under the catalogue of <Good Activist>, listed are names of 16 novels: <Won’t Live Any More>, <Live for More days>, <A Piece of cigarette>, <Family Album>, <Go to Nan Jing>, <Memory of Times as A Problem Girl>, <Go to Changzhoou>, <Always Looking at Me>, <The West Side>, <Good Activist>, <The Room of Xiao Lin and Xiao Lin>, <Accompanying>, < I Love You, Mei Lan>, <Spraining the Neck>, <Start to Do>, <Submersed City>. Visitors can read immediately the works by clicking the names of them except the novels of <Do You Feel Pain>and <As Free As Divorce>.

 After finding that the works to which Bookoo has exclusive rights of use being uploaded on Tom web, Bookoo applied to Beijing Notarial Office to save the related contents of works at issue on Tom web as evidence on July 12, 2000, and on Oct. 19, 2000, Bookoo again applied to Beijing Notarial Office to save the contents on the web that can prove the main body of the web as evidence.

 To verify the facts claimed, Bookoo submitted the court the following evidence: the text of <The Contract for Copyright Use License>signed by Bookoo and Zhou Jieru, the text of <The Authorization Letter> subscribed by Zhou Jieru on February 6, 2000, the notarial deed no.17185(2000) and the notarial deed no.32341 (2000) issued by Beijing Notarial Office. In cross-examination, defendants demurred authenticity of signature on <The Contract for Copyright Use License> and <The Authorization Letter>, but failed to submit sufficient disproof. We hereby refuse to sustain defendants’s demurrer on this point. Therefore we admit the above evidence provided by Bookoo and make a finding to this effect. 

To testify the works at issue uploaded on “Today’s Writers”, and the fact that the contents of Zhou Jieru’s works can be read on Tom web is caused by linkage to “Today’s Writers” web, Xun Neng and Tom submit to the court the following proof: 1.the text of <The Contract for Literature Channel and Cooperation in Cultural Activities> signed by Xun Neng and Today’s Focus Center, for explaining the cause to link the two webs, 2.the notarial deed no.04026 (2000) issued by Chang An Notarial Office on December. 18, 2000, at the application of Xun Neng, to save the evidence that all the webpages involved in Zhou Jieru’s works are marked “The contents of this channel are provided by Today’s Writers”, at the meantime, the notarial deed can testify that by clicking the names of the works, resource positioning sign of Today’s Writers can be seen. Pendente lite, at application of Xun Neng, this court required Today’s Focus Center to make a statement on the facts at issue. Today’s Focus Center testified that Today’s Writers web was owned by it, which mainly published literature works; that Zhou Jieru’s works involved in this lawsuit once published on the web servers of Today’s Writers; that Tom set connection to Zhou Jieru’s works on Today’s Writers web; that in the contract, both parties made no specific agreement in this connection; that Zhou Jieru once authorized Today’s Writers web to publish her works, but it failed to prove it now. In examining the evidence, Bookoo challenged the fact of connection stated by two defendants, but failed to provide sufficient evidence. This court admits evidence presented by two defendants and makes a finding to this effect. 

In addition, this court finds that Bookoo once sent a email to Today’s Writers web on July, 2000 to object publishing Zhou Jieru’s works on Today’s Writers web, but Xun Neng and Tom knew nothing about it. After Bookoo brought in an indictment, Xun Neng immediately began to save evidence, and Tom disconnected its linkage to Today Writers. Xun Neng once questioned Today’s Focus Center whether Today’s Writers web has rights to publish Zhou Jieru’s works. Bookoo admitted that it neither notified Xun Neng and Tom nor claimed its rights before them. The above facts are testified by evidence presented by Xun Neng and Today’s Focus Center as well as the statement of Bookoo at court. We make a finding to this effect.

 This court holds that, based on findings of fact, it is confirmed that the web operated by defendant Tom sets connection to works published on Today’s Writers web, to which plaintiff claims an exclusive right of use. Under this circumstance, the key issue at dispute in this case is：if the contents being connected to infringe upon other’s copyrights, those who make connection should be liable for it.

 As a method to facilitate visitors to acquire information online, connection is very populous among web operators. From the point of technology, the function of connection is to lead browsers of visitors to access the web that publishs the connected contents, and setting connection is only a shortcut for visitors to browse the contents stored online. From the point of use of works, the contents being connected to are not copied and uploaded online by connection maker. Visitors online can access the contents online through connected web, but in fact, it is the web who publishs the connected contents but not connection makers to carry out directly the action of publishing. Making connection doesn’t equal to publishing directly, and in essence, it equals to helping publishing. In this sense, those who upload the infringed contents are truly peacebreaker for infringement dispute online. Considering immense information and works spreading on internet and the fact that webs are connected to each other, if the web making connection to are liable for obligation of previewing before making connection, undoubtedly, internet service providers will bear heavy burden, which in turn goes against development of internet. At the meantime, it is worth noting that the aim to make connection is to increase pageview of web, and increasing pageview is closely connected to economic profit that web operator tries to gain, therefore, according to the principle of “rights and obligations go hand in hand”, it is necessary to demand ISP to pay duly diligence in making connection and bear business risk accordingly so as to protect obligee’s lawful rights and regulate web publishing. Although there are no laws on rights and obligations incurred by connection, considering the spirit of legislation of copyright law, we should follow the principle of balance rights and obligations between works obligee and ISP in disposing this dispute. Based on the above reasons, this court holds that, except ISP have known the contents being connected to infringe upon other’s rights but still setting connection to help publishing, or refuses to take positive methods to control aftermath after obligee warns ISP of it, it is not proper to require ISP to bear more civil obligations when making connection.

 In this lawsuit, the main reason plaintiff accuses defendant of tort is that, defendant Xun Neng enters into a cooperation agreement with Today’s Focus Center on providing contents for Tom web, thus defendant Xun Neng should be liable for previewing the connected contents, but the behavior of defendant shows defendant neglects in performing this obligation, hereby defendant subjectively has fault for aftermath of illegal publishing. This court holds that there are no stipulation on specific contents connected in the contract signed by Xun Neng and Today’s Focus Center, but Xun Neng has noted that this way of publishing may involve issues of protection of rights of works obligee or other obligee when signing the contract, so Xun Neng asked Today’s Focus Center to provide guaranty of rights, hereby it can’t come to conclusion that defendant has mutual subjective prepense with the web that publish works in uploading and spreading the works, to which plaintiff claims exclusive right of use. No evidence prove that defendants have mutual subjective prepense in making connection. No evidence prove that when making connection, defendants know the works subject to blemish of rights. Knowing plaintiff brought in an indictment for it, defendants duly adopt method to disconnect, hereby this court rejects plaintiff’s claims that defendants shall bear liabilities for tort. We hereby decide as follows:

Reject Bookoo’s claims;

The cost of this lawsuit is RMB 1706, and should be borned by plaintiff Bookoo (paid).

 Either Bookoo or Tom that refuses to accept this judgement as final may appeal to the Higher Court of Beijing by submitting its appeal petition to this court within 30 days after the service of this judgement. Xun Neng may submit its appeal petition to this court within 15 days after the service of this judgement if it refuses to accept this judgment as final. A sufficient number of copies of the appeal petition should also be submitted for each opposing party to have one copy.

 

Jin Qi Presiding Judge

Shao Mingyan Acting Judge

Song Guang Acting Judge

April 24,2000

Pan Wei Clerk

（Translated by Zhang Cai Rong）