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Open source copyright case in China - 2018 - English translation

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This is a translation of the Civil Decision of Beijing IP Court No. 631 in 2018. This was translated by Maggie Wang.

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Open source copyright case in China - 2018 - English translation

  1. 1. Civil Decision of Beijing IP Court No. 631 Date: April 12, 2018 Plaintiff: Digital Heaven(Beijing) Internet Technology Co. Ltd. Legal representative: Wang An, President Authorized agent: Zhou Dandan, Beijing Unitalen Law Firm Authorized agent: Wang Heshu, Beijing Unitalen Law Firm Defendant: Grapefruit(Beijing) Technology Co. Ltd. Legal representative: Liu Xin, CEO Authorized agent: Yu Guofu, Beijing Shengfeng Law Firm Authorized agent: Liu Yuping, Beijing Haotian Xinhe Law Firm Defendant: Grapefruit(Beijing) Mobile Technology Co. Ltd. Legal representative: Liu Xin, CEO Authorized agent: Yu Guofu, Beijing Shengfeng Law Firm Authorized agent: Zou Da, Technical director of Grapefruit(Beijing) Mobile Technology Co. Ltd. The plaintiff Digital Heaven(Beijing) Internet Technology Co. Ltd. (“DigitalHeaven”) filed a complaint for computer software copyright infringement against Grapefruit(Beijing) Technology Co. Ltd. and Grapefruit(Beijing) Mobile Technology Co. Ltd.(“APICloud”). This court accepted the case on April 13, 2015 and lawfully formed a collegiate bench. The defendant’ opposition against jurisdiction of this case was rejected by this court on June 24, 2015(Civil ruling of Beijing IP Court No. 631). The defendant appealed the ruling with Beijing Higher Court. Beijing Higher Court dismissed the appeal and confirmed the ruling of this court on August 31, 2015(Civil ruling of Higher Court No. 3610). At the request of the plaintiff and the two defendants, this court entrusted an appraisal institution with expert testimony on April 18, 2016. The appraisal institution provided its expert testimony respectively on July 4, 2016 and May 4, 2017. The court held a public hearing on October 19, 2017. The authorized agents all participated the hearing. This case is finalized now. The plaintiff DigitalHeaven alleges: DigitalHeaven is the copyright holder of HBuilder development tool software. DigitalHeaven found in September 2014 that a software named APICloud was launched on the two defendants’ official website. After comparison, DigitalHeaven noticed that APICloud copied 3 plug-ins(code input method function plug-in, real machine running function plug-in, changing while viewing function plug-in) from HBuilder developer tool software. The defendants’ act infringes the plaintiff’s rights of reproduction, modification and internet transmission. Wherefore, the plaintiff requests the following relief: 1. An order requiring the two defendants to publish a declaration of apology to the plaintiff and keep it for a whole month in the most prominent positions on the website www.apicloud.com and the defendants’ official accounts on Sina Weibo, Wechat official accounts, Sina website, 36kr.com, CSDN, etc. in order to eliminate the ill effects of the infringement.
  2. 2. 2. An order requiring the defendants to pay the plaintiff compensation and costs of 3,500,000 RMB, including attorney fee of 200,000RMB, notarial fee of 24,330RMB, document retrieval fee from national library of 270RMB, i.e. costs of 224,600RMB. The defendants together allege: 1. The plaintiff’s HBuilder software is an open source software governed by GPL license. According to GPL license, HBuilder software includes GPL licensed third-party source codes, so HBuilder is also open sourced. Any third party has the right to use its codes to build derived software products under GPL license. Therefore, the utilization of the plaintiff’s relevant source codes in APICloud software does not require permission from the plaintiff. The defendants’ act does not infringe the plaintiff’s copyright. 2. Even if the act in suit consists infringement against the plaintiff’s copyright, the plaintiff’s damage request lacks support of either facts or legal ground considering that: the three plug-ins alleged to be infringing the plaintiff’s copyright are not the defendants’ core software; the defendants’ software in suit was launched online for a very brief period of time; both sides’ software in suit are free software; the plaintiff’s codes used in the allegedly infringing software is of a very small amount; the defendants did not have any bad faith. 3. The plaintiff’s request for apology and elimination of ill effects lacks ground. To summarize, the defendants request the court to reject the plaintiff’s requests. After examination of the case, this court finds the below: 1. Facts about ownership of copyright On October 21, 2013, the plaintiff finished the development of HBuilder software. On March 30, 2015, the said software was updated to version 5.5.0, which is the appraised version in this case. Both sides identify the plaintiff is the copyright owner of HBuilder. The above facts are supported by evidence like Certificate of Computer Software Copyright Registration, Notarization No. 7195(2015), hearing record, etc. 2. Facts about the allegedly infringing act On April 1, 2015, the plaintiff downloaded the allegedly infringing software APICloud1.1.12 from the official website run by both defendants. The two defendants admit the software was provided to the users by them both. The plaintiff points out that the allegedly infringing software was not limited to this one version. Instead the infringement covers all versions of the software from September 15, 2014 when the website was launched till the end of 2015. To prove the similarity between the code input method function plug-in, real machine running function plug-in, and changing and viewing function plug-in in HBuilder and APICloud software, the plaintiff filed an application with this court for appraisal. After collecting opinions of both sides, this court entrusted the IP judicial expertise institution with Software and Integrated Circuit Enhancement Center of Ministry of Industry and Information Technology to conduct expert testimony against APICloud1.1.12 and HBuilder.window.5.5.0. Both sides agreed to the versions to be appraised. The appraisal institution’s expert testimony is as follows: 1. Code input method function plug-in: 29 out of 30 source code files are identical with the corresponding source codes
  3. 3. in the plaintiff’s software; 2. Real machine running function plug-in: 18 out of 23 source code files are identical with the corresponding source codes in the plaintiff’s software; 3. Changing while viewing function plug-in: 44 out of 56 source code files are identical with the corresponding source codes in the plaintiff’s software. As the two defendants consider the plaintiff’s source codes of said software are identical to prior third-party open source software codes, they filed application for a second appraisal. This court entrusted the same appraisal institution with the appraisal based on the previous expert testimony. The object of the appraisal is the source codes considered identical in the previous expert testimony and multiple open source and third-party software provided by the defendants. 130 files involve real machine running function, 775 files involve changing while viewing function, but none of them involve code input method function. The appraisal institution’s second expert testimony is as follows: 1. Comparison of the 29 source code files in code input method function plug-in with prior source codes provided by the defendants shows no corresponding relationship, i.e. they are not identical; 2. Comparison of the 18 source code files in real machine running function plug-in with prior source codes provided by the defendants shows 13 of the files are identical; 3. Comparison of the 44 source code files in changing while viewing plug-in with prior source codes provided by the defendants shows 2 of the files are identical. Neither sides raised objection against the testimony. The above facts are supported by evidence including Notarization No. 7186(2015), MIIT ICC IP Appraisal No. 251(2016) and court hearing record, etc. 3. Facts about open source software referred to by the defendants The plaintiff’s HBuilder software(Version 5.5.0) includes GNU GNU GENERAL PUBLIC LICENSE (“GPL”). GPL v3 published on June 29, 2007 includes terms as below: 0 Definition: “The Program” refers to any copyrightable work licensed under this License. To “modify” a work means to copy from or adapt all or part of the work in a fashion requiring copyright permission, other than the making of an exact copy. The resulting work is called a “modified version” of the earlier work or a work “based on” the earlier work. 5. Conveying Modified Source Versions. You may convey a work based on the Program, or the modifications to produce it from the Program, in the form of source code under the terms of section 4, provided that you also meet all of these conditions: a) … b)… c)… This License will therefore apply, along with any applicable section 7 additional terms, to the whole of the work, and all its parts, regardless of how they are packaged. …d)… A compilation of a covered work with other separate and independent works, which are not by their nature extensions of the covered work, and which are not combined with it such as to form a larger program, in or on a volume of a storage or distribution medium, is called an “aggregate” if the compilation and its resulting copyright are not used to limit the access or legal rights of the compilation's users beyond what the individual works permit. Inclusion of a covered work in an aggregate does not cause this License to apply to the other parts of the aggregate. 7. …“Additional permissions” are terms that supplement the terms of this License by making exceptions from one or more of its conditions. Additional permissions that are applicable to the entire Program shall be treated as though they were included in this License, to the extent that they are valid under
  4. 4. applicable law. If additional permissions apply only to part of the Program, that part may be used separately under those permissions, but the entire Program remains governed by this License without regard to the additional permissions. According to the court hearing, the two defendants confirmed the plaintiff’s HBuilder V.5.5.0 was downloaded by zip file and no installation program was needed. When unzipped, the three pluy-ins alleged by the plaintiff exist as three separate file folders. Further, the two defendants admitted that GPL license is not included in the root directory of the plaintiff’s HBuilder software, nor in the said three file folders. The license is in other files. In order to prove that the three function plug-ins are independently running software instead of derivative work covered by GPL license, the plaintiff submitted three computer software copyright registration certificates corresponding to the three plug-ins. The work involved are named respectively: Code Input Method Plugin(“CIM plugin”), HTML Application Real Machine Coupler Plugin(“ACR plugin”), and HTML Code Real-time Rendering Plugin. The first two software were published on August 10, 2013 and the latter one was published on Dec. 13, 2013. The defendants confirmed the certificates to be authentic. The above facts are supported by evidence including GNU GENERAL PUBLIC LICENSE, copyright registration certificates, Notarization No. 7181(2015), cross- examination opinions submitted by the two sides, transcript of conversation, etc. 4. Other facts 1) Facts relevant to bad-faith infringement alleged by plaintiff In “Properties” of ResetPwdll.dll file of the allegedly infringing APICloud software, the digital signature shows “Digital Heaven(Beijing) Internet Technology Co. Ltd.” (i.e. the plaintiff in this case). The plaintiff asserts that this single fact shows the software sued is plagiarism of the plaintiff’s software in bad faith. The defendants published an announcement on their official website on June 5, 2015, which says “…we will not respond to some company’s public slander or rumor in case this company utilizes the fame of APICloud to hype itself”. The plaintiff asserted this fact was malicious as well. 2) Facts relevant to the plaintiff’s claim for compensation and reasonable costs The defendants’ WeChat official account published an article which says “Currently our platform has gathered more than 100,000 mobile application developers. In April(2015), the number of new developers was the total of the past 6 months.” The plaintiff proposed the statement could prove the user number of the allegedly infringing software. The defendants, however, said the number of developers should not be considered as the number of users. The costs of the plaintiff: attorney fee of 200,000RMB, notarization fee of 24,330RMB, and national library search fee of 270RMB. The above facts are supported by evidence like Notarization No. 6284(2015), attorney fee invoice, notarization fee invoice, search fee invoice, declaration of notarization authority,
  5. 5. etc. This court finds: HBuilder software in suit is a computer software governed by Article 3 of Copyright Law of People’s Republic of China. The defendants admit that the plaintiff is the copyright owner of the said software. The three plug-ins, i.e. code input method function plug-in, real machine running function plug-in, and changing while viewing function plug-in are part of HBuilder software, but they run independently. The plaintiff filed separate copyright registrations for the three plug-ins. So they are independent computer software work owned by the plaintiff. The plaintiff has the right to prohibit use of other people according to Article 10 of Copyright Law, which includes the right of reproduction, modification and internet transmission asserted by the plaintiff in this case. According to the expert testimonies it can be concluded as below: For code input method function plug-in, 29 out of 30 source code files are identical with the corresponding source codes in the plaintiff’s software; For real machine running function plug-in, 18 out of 23 source code files are identical with the corresponding source codes in the plaintiff’s software; For changing while viewing function plug-in, 44 out of 56 source code files are identical with the corresponding source codes in the plaintiff’s software. In the said identical source codes, only a small portion is identical with third-party or open- source software. Therefore, the allegedly infringing software copied most part of the plaintiff’s software and modified a small part of it, which falls into the protection scope of the plaintiff’s right of reproduction and modification. The allegedly infringing software was available on the defendants’ official website for users to download, which falls into the protection scope of internet transmission. Based on the above, if not authorized by the plaintiff and no legal defense exists, the defendants’ use constitutes infringement of the plaintiff’s said rights. The defendants claimed the plaintiff used third-party source codes covered by GPL license, so the software should also be open-sourced and any third party has the right to use the codes to build derivative work based on GPL license. This court concludes that the three plug-ins in HBuilder software are independent software work, so the point is whether the three plug-ins are governed by GPL license. At the court hearing, the defendants admitted that the three plug-ins exist in separate files which do not include GPL license documents. Further, the root directory of HBuilder software does not include GPL license either. According to GPL license, the covered work includes copyright protected programs licensed under GPL and derivative and modified work based on GPL licensed work. The three plug-ins do not contain GPL license and the root directory of HBuilder software does not include GPL license either. Although GPL license exists in other files of HBuilder software, the license does not cover the three plug-ins in suit. Therefore, the three plug- ins are not open-sourced derivative or modified work under GPL License. The defendants’ reasoning about open source is ungrounded. The defendants’ use constitutes infringement of the plaintiff’s said rights. According to Article 48 and Article 49 of Copyright Law, whoever commits acts of infringement shall bear the civil liability for such remedies as eliminating the effects of the act, making a public apology or paying compensation for damages. As the
  6. 6. defendants’ act in suit constitutes infringement of the plaintiff’s right of modification, the defendants shall bear the civil liability of making a public apology and eliminating the ill effects. The two defendants shall publish a declaration to apologize to the plaintiff in the most prominent positions on the website www.apicloud.com and the defendants’ official WeChat accounts. This court does not support the plaintiff’s request for publishing the apology declaration on other platforms like Sina Weibo because those platforms are not operated by the defendants and thus not under the defendants’ control. The plaintiff’s actual losses and the defendants’ gains cannot be determined as the plaintiff did not submit evidence to prove its losses and the defendants’ gains. According to Article 49 of the Copyright Law, the compensation shall be determined by the court and shall be equal or below 500,000RMB. It’s important to note that in case No.1055 of Beijing IP Court(2015), the judicial limit of compensation of 500,000RMB was for one infringement act instead of for the whole case. When multiple acts are involved, the whole case shall not be limited up to 500,000RMB. The current case involves 3 separately independent work and the defendants’ act shall be considered as infringement of 3 works, so the compensation limit shall be 1500,000RMB. Considering facts as follows, this court sets the compensation limit for this case to be 1250,000RMB: Firstly, the defendants conducted bad-faith plagiary. The infringing software includes files from the plaintiff’s three plug-ins. Particularly, the defendants used most parts of code input method function plug-in and changing while viewing function plug-in. Without reasonable causes, coincidence may be excluded, so the copying was considered intentional. The digital signature of the plaintiff in the infringing software reaffirmed the plagiary. The false announcement on the defendants’ official website shows intentional bad faith. Secondly, the number of software users and its growth rate was clearly announced on the defendants’ official WeChat account as “Currently our platform has gathered more than 100,000 mobile application developers. In April(2015), the number of new developers was the total of the past 6 months.” Although the defendants claimed that the number of developers should not be considered as the number of users, they did not provide any evidence or reasonable grounds. So the above are the major considerations for compensation. The attorney fee of 200,000RMB is fully awarded by this court considering the complexity of computer software litigation and circumstances of this case. Notarization fee of 24,330RMB is awarded partially because only a part of the notarization was related to this case and the plaintiff did not point out clearly the corresponding relationship. The national library search fee of 270RMB is awarded because it was spent on this case. In summary, this court supports the plaintiff’s cause of action based on facts and law. In accordance with Article 3, Paragraph 1, (3), (5) and (12) of Article 10, Article 48 and Article 49 of Copyright Law of People’s Republic of China, this court’s verdict is as follows:
  7. 7. 1. The defendants Grapefruit(Beijing) Technology Co. Ltd. and Grapefruit(Beijing) Mobile Technology Co. Ltd. shall, within 10 days after this decision takes effect, publish a declaration to apologize to the plaintiff and keep it for a whole month in the most prominent positions on the website www.apicloud.com and the defendants’ official WeChat accounts in order to eliminate the ill effects of the infringement. The declaration shall be reviewed by this court. Overdue performance will result in publication of major content of this decision at the request of Digital Heaven(Beijing) Internet Technology Co. Ltd. The costs for publication shall be burdened by the defendants. 2. The defendants Grapefruit(Beijing) Technology Co. Ltd. and Grapefruit(Beijing) Mobile Technology Co. Ltd. shall, within 10 days after this decision takes effect, pay a compensation of 1250,000 and the reasonable costs of 210,000RMB to the plaintiff. The other claims of the plaintiff are rejected. In case the defendants do not make payment within the designated 10 days according to this decision, Article 253 of Civil Procedure Law of People’s Republic of China will take effect, requiring the defendants to double pay the interest for the period of delay in performance. This court’s prosecution fee of 34,800RMB shall all be burdened by the defendants(Payment due 7 days after this decision takes effect). The appraisal fees shall all be burdened by the defendants. The amount of 150.000RMB for the first appraisal already paid by the plaintiff shall be paid by the defendants within 10 days after this decision takes effect. If dissatisfied with this decision, both sides may file petition for appeal with this court. Any petition shall be filed within 15 days from the date of service of this decision. Copies of any petition shall be submitted per number of entities and appeal fee shall be paid. The petition will be handled at Beijing Higher Court. Presiding judge: Rui Songyan People’s juror: Wang Hongbo People’s juror: Guo Yanqin April 12, 2018 Assistant judge: Zhou Wenjun Clerk: Song Yunyan

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