This article is from WeChat official account:YOUNG Finance & Finance (ID: youngcaijing) , author: Wang Wei, the original title: “fight with a lot of fight piracy lawsuit | a lot of dialogue to fight anti-infringement in favor of the first person: never compromise! “, the title picture comes from: Visual China
The online case number of the judgment document is (2020) Lu 15 Min Chu No. 229 Judgment concerning the copyright infringement case between Wang Xingchuan and Shanghai Xunmeng (screenshot from the judgment document website) )
After YOUNG Finance published the report of “Piracy of China by Pinduoduo”, we searched the copyright ownership and infringement dispute case of Pinduoduo on the Judgment Documents website and contacted the winner and writer Mr. Wang Xingchuan. A large number of pirated copies of his work “The Ninth Rabbit” appeared on online e-commerce platforms such as Pinduoduo, Taobao, JD.com, and Wang Xingchuan initiated a lawsuit.
He claimed to be the “first person to win the anti-infringement lawsuit against Pinduoduo.” Wang Xingchuan sued Pinduoduo for the copyright infringement case, chatted with us about the lawsuit process and thoughts, and brought forward to more creators who need rights protection. Methodology.
Writer Wang Xingchuan complained to various cultural law enforcement agencies for pirated works on various e-commerce platforms and received responses
YOUNG Finance: Why did you sue Pinduoduo?
Wang Xingchuan: After discovering pirated books on the Pinduoduo platform, during the Spring Festival of 2020, I filed a real-name report on online platform pirates to cultural law enforcement agencies across the country during the Spring Festival. Or sent evidence of piracy by mail, and more than 1,000 pirates were reported. It is required to investigate and deal with the illegal and criminal acts of pirates forging publication business licenses in accordance with the law. However, some of these complaints are not answered at all, and some only have official responses.
My purpose is not to fight a lawsuit against Pinduoduo, but to effectively combat piracy. Direct pirates were not found, and reporting to the state organs failed, so the online platform to directly prosecute pirated books was Pinduoduo. In fact, if Pinduoduo followed the “Intellectual Property Infringement Warning Notice” I sent them (also called “rights notice warning letter” in the judgment, hereinafter referred to as “Notice”) , I will give up prosecuting Pinduoduo to delete pirated links before the specified date, but Pinduoduo’s approach has disappointed me.
# Intellectual property infringement warning notice:
A warning letter refers to a legal letter that points out the infringement facts to the infringer, explains the legal consequences of the infringement, and makes a clear request to the infringer to stop the infringement in accordance with the law. Use warning letters and rights declaration letters to safeguard intellectual property rights through warnings and negotiations. Through the warning letter, you can remind non-malicious infringers and deter some malicious infringers, so as to achieve the effect of stopping infringements with less cost and faster time, and effectively safeguard intellectual property rights. The warning letter is a means of self-relief and rights protection in the event of infringement, and does not have the effect of enforcement. It mainly prompts the infringer to stop the infringement by warning the infringer of the corresponding legal consequences. In addition, after receiving the warning letter, it will not stopThe infringer who stops the infringement can be confirmed as a malicious infringement, and its infringement liability will be increased to a certain extent in the subsequent litigation.
YOUNG Finance: How did you prepare before you sue Pinduoduo?
Wang Xingchuan: Before formally suing Pinduoduo, I fully consulted several lawyers. The lawyers all told me: Even if the fixed evidence is notarized, if you directly sue the online platform, you are doomed to lose the lawsuit, because the law has clear requirements for copyright infringement cases on the online platform, and the right notice warning letter must be sent in accordance with the law before the lawsuit. After receiving the right notification warning letter, the platform can only claim infringement liability for the enlarged part of the loss of the right holder only if it reaches “failure to delete the infringing and piracy link in time” or “failure to take effective measures in time”.
The lawyers I consulted were all pretty good. They not only helped me analyze the subject matter of the case, but also told me about the “safe haven” principle of making good use of online platforms in accordance with the law.(“Regulations on the Protection of the Right to Dissemination of Information Network”), let me have a detailed knowledge and understanding of the legal terms that the network platform should be responsible for.
# Principles of Safe Harbor for Network Platforms:
The “safe harbor” principle means that when a copyright infringement case occurs, when the ISP(Internet service provider) only provides space services and does not When making web content, if the ISP is notified of infringement, it is obligated to delete it, otherwise it will be regarded as infringement. The safe harbor principle consists of two parts, “notice + removal” (notice-take down procedure).
YOUNG Finance: Do you think this principle applies to Pinduoduo’s case?
Wang Xingchuan: Pinduoduo directly obtained economic benefits* from the works involved in the case, which does not meet the “safe haven” principle clause (information network communication Rights Protection Regulations Article 22) and did not take any measures to stop piracy after receiving notification from the right holder, Should not be exempted in accordance with the law.
Pinduoduo transaction receipt provided by Wang Xingchuan
*(On April 28, 2020, Wang Xingchuan logged into Pinduoduo APP and bought his own work in the “Splendid Forever” store for 17.3 yuan The pirated book “The Ninth Rabbit”, order number (omitted), payment method: Alipay. The pirated page shows the number of products: 901 has been put together 1721. At the same time, the Alipay receipt record shows: the payee account name: Shanghai Dreams Information Technology Co., Ltd., account number: omitted, account type: Alipay account, account opening institution: Alipay (China) Network Technology Co., Ltd., Alipay transaction number: (omitted), payment amount: 17.30.)
YOUNG Finance: How did you sue Pinduoduo?
Wang Xingchuan: First of all, I reproduced the whole process of buying pirated books, including asking the customer service whether it was a pirated book, placing an order, etc. Use the screen recording software to record the screen during the whole process. Secondly, send the “Notice Letter” to Pinduoduo, which is an online platform. This step of sending the letter is very, very critical.
Wang Xingchuan sent and signed the notification letter to Pinduoduo. But this notification letterIdentified as invalid notice by Pinduoduo
# Four valid “Notice Letters”
The first type: According to Article 14 of the “Regulations on the Protection of the Right to Dissemination through Information Networks,” the notice should contain: (1) the name (name), contact information and address of the right holder; (2) request to delete or disconnect The name and network address of the linked infringing works, performances, audio and video products; (3) Preliminary proof materials that constitute infringement. The right holder shall be responsible for the authenticity of the notice.
The second type: “Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving the Use of Information Network to Infringe Personal Rights and Interests” (Law [2014] No. 11) Article 5 stipulates that in accordance with the second paragraph of Article 36 of the Tort Liability Law, the infringed party shall issue a notice to the network service provider in writing or publicly by the network service provider, including The following content shall be determined by the people’s court as valid: (1) the name (name) and contact information of the notifier; (2) the network address required to take necessary measures or relevant information sufficient to accurately locate the infringing content; (3) the notifier’s requirements The reason for deleting the relevant information.
The third type: Notice of the Supreme People’s Court on the “Guiding Opinions on the Trial of Civil Cases Involving Intellectual Property Rights on E-commerce Platforms” issued on September 13, 2020. Fafa [2020] No. 32: V. Basis for Intellectual Property Rights Owners According to Article 42 of the E-Commerce Law, notices issued to e-commerce platform operators generally include: intellectual property rights certificates and the real identity information of the right holders; information about the alleged infringing goods or services that can be accurately positioned; constitute infringements Preliminary evidence; written assurance of the authenticity of the notification, etc. The notice should be in writing. (Note: This method is subject to further judicial confirmation. In this case, the defendant Pinduoduo defended on the grounds that the plaintiff’s notice of rights did not comply with the provisions of this law. The third paragraph of Article 2 of the Electronic Commerce Law defends: Where laws and administrative regulations have provisions on the sale of goods or the provision of services, those provisions shall apply. Financial products and services use information networks to provide news information, audio and video programs, publications, and This law does not apply to content services such as cultural products. Because book piracy belongs to publication, my defense should exclude publication, copying, and distribution in publication from the e-commerce law. In the end, the court supported my defense. But if Sending a notice of rights in this format also has legal effect.)
Type 4: “Civil Code of the People’s Republic of China” (from January 1, 2021The implementation of the “Law on Tort Liability” was abolished at the same time.) Article 1194: Network users and network service providers who use the network to infringe on the civil rights of others shall bear tort liability. If the law provides otherwise, follow those provisions. Article 1195: Where a network user uses network services to commit infringements, the right holder has the right to notify the network service provider to take necessary measures such as deleting, blocking, and disconnecting links. The notice should include the preliminary evidence that constitutes the infringement and the true identity information of the right holder. After receiving the notice, the network service provider shall forward the notice to the relevant network user in a timely manner, and take necessary measures based on the preliminary evidence of infringement and the type of service; if the necessary measures are not taken in time, the network user shall bear the enlarged part of the damage Joint and several liability. If the right holder causes damage to the network user or network service provider due to wrong notification, he shall bear tort liability. If the law provides otherwise, follow those provisions. Article 1196: After receiving the forwarded notice, a network user may submit a statement that there is no infringement to the network service provider. The statement should include preliminary evidence that there is no infringement and the real identity information of the network user. After receiving the statement, the network service provider shall forward the statement to the obligee who issued the notice and inform him that he can lodge a complaint with the relevant department or file a lawsuit with the people’s court. The network service provider shall promptly terminate the measures taken if it has not received a notice that the right holder has complained or filed a lawsuit within a reasonable time limit after the transfer statement reaches the right holder. Article 1197: If a network service provider knows or should know that a network user uses its network service to infringe the civil rights of others, and fails to take necessary measures, it shall bear joint and several liability with the network user.
The above format for sending the “Notice Letter”, no matter which format, has legal effect. I used the second type, but because the “Tort Liability Law” was abolished after the implementation of the Civil Code on January 1, 2021, a notice of rights will be issued after 2021, and it is estimated that the above-mentioned second type is no longer valid. It is recommended to re-issue a notice of rights, subject to any one of the three other than the second one.
After the above letter is written, a careful inspection is carried out. The notification letter includes: (1) the name (name) and contact information of the notifier; (2) the network address that requires necessary measures to be taken or the relevant information sufficient to accurately locate the infringing content Information; (3) The reason for the notifier’s request to delete relevant information is piracy. All statutory elements are met, after confirming that there is no problem, print it out, sign each page, and press the fingerprint.
It was mailed to Pinduoduo in the form of SF Express: SF10*********30 on March 10, 2020. Attn: Shanghai Xunmeng Information Technology Co., Ltd. Legal Representative: Sun Mou , Domicile: Room 2***-2***, No. 5** Loushanguan Road, Changning District, Shanghai, unified social credit code: 9****************C,Contact: 021-6******8, Zip Code: 200000
According to logistics information, Pinduoduo signed for it on March 11, 2020.
The above-mentioned right notice warning letter, logistics information record, and receipt record are the key evidences for the subsequent court trial and verdict, which are very important.
Pinduoduo, as a network service provider, fails to take necessary measures in time after receiving the notice, and assumes joint and several liability with the user for the enlarged part of the damage. This is the key to Pinduoduo’s failure in the first instance in this case.
YOUNG Finance: What are the difficulties in this link?
Wang Xingchuan: The most important point is still to mention: Forensics of Pinduoduo pirated link URLs is quite, quite troublesome. The same pirated merchant pirated the same work, in the Pinduoduo APP. There are multiple connections, which can cause trouble for forensics. (that is, a product has two different network addresses, see the figure below for explanation) During the trial of the case, Pinduoduo repeatedly cross-examined the pirated link URL in the right notification letter that was not the link involved in the case. Later, in the case against Pinduoduo, I simply did not write the URL. Infringement and pirated URLs are not necessary. The law stipulates: the network address that requires necessary measures to be taken or the relevant information sufficient to accurately locate the infringing content; if the network address is determined to be difficult to fix, it can be accurately located Information about infringing content is also available.
Wang Xingchuan provides a demonstration product network connection
The two links provided by Wang Xingchuan are slightly different: After our test, one of them has a red envelope for sharing and the other does not, but they all point to the same home The same product in the shop
YOUNG Finance: Was the process of preparing the physical evidence smooth?
Wang Xingchuan: I would like to say something in particular here: In the subsequent communication with Pinduoduo many times and many times, I will repeatedly emphasize and find cross-examination opinions during the trial: The plaintiff did not submit any evidence showing that the goods under complaint were infringing goods, did not provide a comparison between the original version and the pirated version, and did not provide pictures of the goods actually purchased.
I suffered this loss in the (2020) Lu 15 Minchu Case No. 223. According to Pinduoduo’s request, the package of the express delivery was removed before the trial, and the comparison was conducted to confirm that it was a pirated version.(Young Finance asked Wang Xingchuan for the details of the telephone recording and was told that the recording file of this link was not found). During the trial, Pinduoduo issued a cross-examination opinion: The pirated version claimed by the plaintiff could not prove the source of the evidence because it had no outer packaging, and the evidence was not recognized. Such behavior of Pinduoduo is equivalent to letting you take the initiative to destroy the evidence. When you destroy the evidence, you say that you have no legal source. No matter what you do, it is not good for you.
YOUNG Finance: What should be the correct approach?
Wang Xingchuan: The best way is: After receiving the pirated book, keep it intact and keep it intact, and then open the package for verification in court when it is sued for the trial. Therefore, after receiving a pirated book, you must never move it and store it as a treasure. Because the pirated books received are used as key evidence.
YOUNG Finance: After you sent the letter, did Pinduoduo have any feedback?
Wang Xingchuan: Received a call from Pinduoduo on March 16, 2020, and Pinduoduo made it clear in the call that he ignored himAfter sending the right notice warning letter, after I did two notarizations and received the notarizations on March 16 and March 23 respectively, I decided to file a civil lawsuit against Pinduoduo in accordance with the law.
YOUNG Finance: Why can you win the case against Pinduoduo?
Wang Xingchuan: I personally think that one is that Duoduo does not pay attention to the warning letter sent by the law. Second, Pinduoduo believes that the “Intellectual Property Infringement Warning Notice” (hereinafter referred to as the “Notification Letter”) sent by me in accordance with the law is invalid and does not have any laws. Effectiveness.
I included myself. When I rechecked the legal terms on which the “Notification Letter” was based, I personally thought it was fine. Until the trial, lawyers Pinduoduo still did not recognize the legality of the right notice warning letter, and the legal clauses I quoted for the right notice warning letter clearly pointed out that it was wrong. At that time, I had no idea, and I thought, the right notice warning letter. The letter is the key evidence. If the corresponding laws and regulations cannot be found, the case will undoubtedly lose.
But until I received the judgment, I found out that I won the case. And the right notice warning letter is used as the key verdict evidence! The legality and validity of the “Right Notice Warning Letter” corresponds to the “Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Dispute Cases.” This deeply hidden law currently in force has become the test of the greatest ability to win in this case.
YOUNG Finance: If in the future Pinduoduo will disconnect after receiving a complaint, then these experiences of yours can’t be reused, right?
Wang Xingchuan: In theory. But the key is that Pinduoduo refused to disconnect (link), including the case I sued this year. If you don’t sue, he won’t cut off, your right notice is blank in Pinduoduo’s eyes. This experience is still available. Pinduoduo is arrogant and will not break the link after sending a notice of rights to Pinduoduo.
YOUNG Finance: You didn’t hire a lawyer, but went to battle by yourself. What do you think of prosecuting Pinduoduo?
Wang Xingchuan: The team of lawyers hired by Pinduoduo has made up for my lack of familiarity with the relevant laws and regulations of the Copyright Law.
In many cases in which I sued the online platform Pinduoduo for infringement of pirated books, I used my own efforts to fight with Pinduoduo’s professional intellectual property lawyers, and felt tremendous pressure.
My victory has encouraged writers who still want to fight against piracy of books on online platforms. More than 1,200 writers who have been infringed and pirated by online platforms said that they would submit this case as judicial evidence when prosecuting against piracy.
YOUNG Finance: What advice do you have for suing Pinduoduo for copyright infringement in the future?
Wang Xingchuan: The first point is that if you find a pirated book, you have to give it to Pinduoduo in accordance with the regulations on the protection of information network dissemination rights, as well as the relevant regulations in the Civil Code. This is the first one to send a right notice warning letter. If after he receives the letter, if he does not delete it, you need to file a judicial lawsuit in the court where your domicile is located.
The second is to keep the evidence, and after you receive the pirated book, it is recommended not to open the package, and it is recommended to entrust a third-party notary office to fair and seal the book after buying the book, and then take pictures when the whole process is opened. Video.
The third is to use video notarization as much as possible for notarization. The website you are suing must be consistent with the notarized website, otherwise the court will not accept your evidence, including the website where you sent the “Notification Letter” and the notarized website. Sufficient evidence is required to initiate judicial proceedings.
In addition, there is a claim in my complaint, which is financial compensation. According to Article 5 of the “Methods for Paying Remuneration for Use of Written Works” jointly issued by the National Copyright Administration of the People’s Republic of China and the National Development and Reform Commission of the People’s Republic of China, the basic author’s remuneration standard and calculation method: (1) Original works: 80-300 per thousand words Yuan, the annotation part shall be implemented with reference to this standard. Article 9: If the user has not signed a written contract with the copyright owner, or signed a written contract but failed to agree on the payment method and standard, and disputes with the copyright owner, he shall follow the payment standards stipulated in Articles 4 and 5 of these Measures. The upper limit of the remuneration is calculated separately, and the higher one is paid to the copyright owner, and the publication is not offset as the remuneration. In the complaint, I made a claim according to the highest standard (request for compensation of 40,000 yuan for economic losses).
Wang Xingchuan’s case against Pinduoduo ended up withWang Xingchuan won the case with 5 judgments. This year, he has 10 lawsuits against Pinduoduo, which have been heard in court awaiting judgment. In this article as an example, the final court decision of Case No. 229 is that in accordance with Article 48 Paragraph 1 and Article 49 of the Copyright Law of the People’s Republic of China, Provisions on Several Issues Concerning the Application of Laws in Civil Dispute Cases of Rights and Interests” (Fa Interpretation [2014] No. 11) Article 5, Article 49 of the Copyright Law of the People’s Republic of China: The defendant Shanghai Xunmeng Information Technology Co., Ltd. immediately ceases infringement Wang Xingchuan’s copyright shall compensate the plaintiff Wang Xingchuan for economic losses and reasonable expenses totaling 10,000 yuan within ten days from the effective date of this judgment.
File reference: Judgment Document Network https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=0b3802fb060c4b47b70cac8a009c6170< /span>
Acknowledgements: Lawyer Yang Zhaoquan of Beijing Weinuo Law Firm, Publicity Section of Shanghai Xuhui District People’s Court
This article is from WeChat official account:YOUNG Finance & Finance (ID: youngcaijing) , author: Wang Wei