Internet data: both “strong protection” and “orderly circulation”
2024-08-11
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Internet data: both “strong protection” and “orderly circulation”
——Fujian courts promote the development of new productivity through judicial protection of intellectual property rights
After three years, Fang Moumou, a partner of Xiamen Gu Mou Technology Co., Ltd. (hereinafter referred to as Gu Mou Company), returned to his studio in "Xiamen Silicon Valley".
The Xinglin Bay, the waterfront greenway... the familiar scene brought Fang Moumou's thoughts back to the past...
The winter of 2021 was even colder for Gu Mou Company than in previous years. At the end of the year and the beginning of the next year, a response notice from the Xiamen Intellectual Property Court made Gu Mou Company feel the crisis - its two main software, Gu Mou E-commerce Picture Assistant and Gu Mou Video Assistant, were suspected of data infringement.
Data is the "oil" for the high-quality development of the digital economy and an important basic resource for accelerating the development of new quality productivity and improving total factor productivity. This intellectual property dispute involving data assets such as pictures and videos has since gone through the first and second instance. It was not until September 27, 2023 that the second instance judgment of the Fujian Provincial Higher People's Court came into effect and the dust settled. Based on the balanced relationship between "strong protection" and "orderly circulation" of data, this case deeply expounds on the boundaries of data rights protection, and guides market entities to obtain and use data in a "proper and appropriate manner". It was selected as one of the 50 typical intellectual property cases in Chinese courts in 2023 released by the Supreme People's Court.
The "Crisis" Behind the "Business Opportunities" of Internet Enterprises
The story begins in 2018. At that time, e-commerce continued to surge with innovative vitality, and more and more people joined the ranks of social e-commerce practitioners. Fang and three other "science and engineering men" who smelled business opportunities developed e-commerce picture assistant software to meet the needs of their e-commerce friends and achieve batch download of pictures.
In July 2019, the development team registered and established Xiamen Gumu Technology Co., Ltd., targeting the huge e-commerce practitioner group as its target customers.
After that, Gu Company launched the video assistant software in 2020 based on the e-commerce picture assistant software. Users only need to copy the link and paste it in the assistant software to batch download the required content.
"These two softwares respond to the needs of resellers to download the original merchants' pictures, texts and videos in batches." According to Fang, "If users download each picture and video individually, it will take a lot of time, but with these two softwares, batch downloads can be completed in just a few minutes."
In the following two years, Fang and others invested millions of yuan in development and continuous improvement of functions. They included more than 100 mainstream Internet platforms as platforms for batch downloads. Xiaohongshu is one of them.
Xiaohongshu was founded in 2013 and has over 300 million registered users. Users can record their daily lives on the platform through pictures, texts, short videos, etc. Some e-commerce merchants download "grass-growing posts" from Xiaohongshu to attract traffic to the products they sell. The two softwares developed by Fang Moumou just facilitate the needs of e-commerce platform sellers to quickly download "grass-growing posts". And it is these batch downloads from Xiaohongshu that have laid hidden dangers for subsequent legal disputes.
At the end of 2021, Xiaohongshu's parent company, Xing Information Technology (Shanghai) Co., Ltd. (hereinafter referred to as Xing Company), filed a lawsuit against Gu Company. Xing Company believes that data assets such as pictures and videos are important competitive resources of their Xiaohongshu platform. The two software involved in the case charged users for bulk download services of Xiaohongshu pictures and videos, which was an improper use of others' business results. In short, Xing Company believes that "the results of its hard work have been 'picked halfway' by others."
The dispute between “technological neutrality” and “tool infringement”
Wang Xin from the Xiamen Intellectual Property Court is the presiding judge of this case. After accepting the case, she couldn't help but feel a "headache."
This intellectual property case involved a dispute over data rights between an Internet platform and a software development company. She had never handled a similar case before.
On the one hand, she "made up for the missed lessons" by strengthening her studies. She first downloaded similar judgments made by the Supreme People's Court in the past five years from the China Judgment Documents Network and classified them. She also summarized, sorted out and extracted the latest judgment opinions, carefully studied and compared them, and printed out materials full of notes, key points and learning experience notes.
On the other hand, the support of technical expert Chen Gong also gave Wang Xin confidence. Chen Gong is not only the deputy general manager of Xiamen Yaxun Network Co., Ltd., but also a technical investigator of the Xiamen Intellectual Property Court. The so-called technical investigator is a "think tank" that helps judges solve technical problems when hearing highly professional intellectual property cases such as patents, computer software, and trade secrets. He believes: "To rule on this case, the core is to answer whether the batch download tool infringes the data rights of platform companies."
On April 28, 2022, the Xiamen Intellectual Property Court heard the case. The plaintiff believed that the tool facilitated e-commerce stealing of pictures, video relocation, and pseudo-originality, damaging the platform data and safe and orderly ecological environment accumulated by Xiaohongshu. The defendant argued that its software only provided a download tool and was "technically neutral", and the downloaded pictures or videos still carried the Xiaohongshu platform watermark, which did not sever its connection with the plaintiff's platform.
After investigation, it was found that both software seemed to be batch downloading data, but there were essential differences. The pictures downloaded in batches by the picture assistant were all marked with the "Little Red Book" watermark, and the data was not maliciously tampered with. Objectively, it only improved the download efficiency of users. The video assistant software modified the MD5 value of the video through technical means. "The MD5 value, in simple terms, is like a unique 'ID number' of the video." Chen Gong explained that when uploading videos, some platforms will judge whether the video is original based on the MD5 value of the video. At this point, the case is clear.
During this period, Wang Xin organized mediation between the two parties many times, but finally gave up because the gap between the two parties' expectations of the amount of compensation was too large.
On September 8, 2022, the Xiamen Intellectual Property Court ruled in accordance with the law: the act of Gu's e-commerce picture assistant downloading pictures and notes in batches did not constitute unfair competition; Gu's video assistant software used technical means to modify the MD5 value of the video, guiding users to use the software to download, modify the MD5 value and "move" the video on the Xiaohongshu platform, and used the operating resources of a certain company to gain benefits for itself by unfair means, which constituted unfair competition. The court ruled that Gu Company should stop the unfair competition involved in the case, publish a statement to eliminate the impact, and compensate Xing Company for economic losses of 150,000 yuan.
"Xing Company was unable to provide a clear amount of loss, and Gu Company made limited profits from using this software." Wang Xin explained, "The 150,000 yuan compensation is the result of comprehensive consideration of consumer rights, social fairness and justice, and the interests of operators."
After receiving the judgment, both parties expressed dissatisfaction and appealed to the Fujian High Court.
Finding the balance between "strong protection" and "orderly circulation"
"Although the size of the two parties in this case is very different, both are innovative Internet companies." After reading the case files, Ou Qunshan, assistant first-level judge of the Third Civil Court of the Fujian High Court, said that such cases should be handled with extreme caution. If the legitimacy of a certain technology is denied simply because it may become a tool for infringement, it will undoubtedly greatly dampen the motivation for innovation.
How to "strongly protect" data while allowing data to "circulate in an orderly manner"? This is the key to the trial of this case. "Whether the two software involved in the case constitute unfair competition should be judged based on the social public welfare interest attributes of Internet information data and whether crawler technology has caused substantial obstruction to the platform's service provision." Chen Guoxiong, the presiding judge of the case and the president of the Civil Court No. 3 of the Fujian High Court, said.
In this case, the Xiaohongshu platform did not restrict the downloading of pictures and notes. The e-commerce picture assistant provided by Gu Mou Company replaced click-by-click downloading with batch downloading, which saved time costs for Internet users and improved the welfare of users as a whole. However, the video assistant software of Gu Mou Company modified the MD5 value of the video, which was conducive to users "moving" the same video between different video platforms, providing great convenience for others to infringe on the right of information network dissemination of works, and encouraged the illegal acts of copying, intercepting, modifying and arbitrarily using the copyrighted video works of others, causing major video platforms to become the hardest hit areas for plagiarism of video works. Therefore, after trial, the Fujian High Court rejected the appeal and upheld the original judgment.
The Internet is a public good. We cannot let technical barriers hinder sharing, nor can we condone the use of technology to infringe on intellectual property rights and affect the rights and interests of others. Protecting intellectual property rights is protecting innovation, and innovation is the core of new productivity. Therefore, protecting intellectual property rights is to help promote the development of new productivity.
According to Chen Guoxiong, in recent years, Fujian courts have fully leveraged the advantages of the Fuzhou, Xiamen and Quanzhou Intellectual Property Courts in concentrating on hearing technical cases, and issued the "Opinions of the Fujian Higher People's Court on Further Strengthening Judicial Protection of Intellectual Property Rights", increasing protection of original innovation, key core technologies, strategic emerging industries, agricultural scientific and technological achievements, and key areas, so that "real innovation" can be "really protected" and "high quality" can be "strictly protected."
On the banks of the Minjiang River, the “real picture” of intellectual property protection is slowly unfolding, and the “innovation factor” is releasing tremendous energy.
In Xiamen, the speed of the special economic zone and the fertile ground for entrepreneurship also inspired Fang Moumou, who is in his forties. After this case, he clarified his doubts about the "boundaries of rights" in the Internet era.
No doubt in his heart, no fear in his actions. At the age of forty, he is ready to start again!
Actively take action to help multiply the numbers
In the digital economy era, data is a "new energy source" and an important production factor alongside traditional factors such as land, capital, and technology. The development of new productivity not only relies on the accumulation of traditional production factors, but also requires actively embracing the era of big data and using data to empower transformation and upgrading, improve quality and increase efficiency.
my country is a country with abundant data resources and digital economy. At present, the scale of my country's digital economy has exceeded 55 trillion yuan, accounting for more than 40% of the national economy. It is the due responsibility of the people's courts to safeguard the digital economy with the rule of law to ensure high-quality development. Courts at all levels should promote the substantive resolution of digital economic disputes through active performance of duties, optimize the digital economic business environment, protect the rights and interests of the people's livelihood in the digital economy field, and improve the digital economic governance system, so as to ensure the high-quality development of the digital economy with high-quality judicial services.
Fujian is the ideological source and practical starting point for the construction of "Digital China". The tide rises in the southeast, and the land of Fujian adds "digital" innovation. Faced with new situations and new tasks, Fujian courts have firmly established the judicial concept that protecting intellectual property rights is protecting innovation, responding to the judicial needs of the digital economy in the new era. Efforts will be made to strengthen the trial and judgment of new business dispute cases, strengthen research on balancing public interests and stimulating innovation under the new situation, and clarify the balance of interests and legal applicability of data acquisition in the Internet environment. Efforts will be made to create a diversified technical investigation system. In view of the characteristics of intellectual property cases involving professional frontiers and complex technical issues, a "five-in-one" technical fact-finding system of technical investigation, technical consultation, expert jury, expert witness, and technical appraisal will be explored to enhance the neutrality, objectivity and scientificity of technical fact determination, and strive to create a higher level of digital justice.
The innovative practices of Fujian courts have provided some useful experiences for reference for courts at all levels. Courts at all levels should earnestly shoulder the responsibility and mission of promoting high-quality development, actively and promptly respond to new legal issues arising from the development of new productivity, give full play to the leading and guiding role of intellectual property judicial rules, encourage and protect innovation, and provide judicial support for technological innovation and the development of emerging industries.
The wind is right for sailing, and it is the right time to set sail. The Third Plenary Session of the 20th CPC Central Committee has closely focused on the theme of promoting Chinese-style modernization and outlined strategic measures for further deepening reform in an all-round way. The people's courts should earnestly enhance their sense of responsibility and mission for reform and innovation, actively participate in the great practice of comprehensively deepening reform, strive to promote the modernization of judicial trial work, develop new-quality productive forces in the new era, improve the system to promote the deep integration of the real economy and the digital economy, and provide better judicial services and guarantees.
Source: People's Court Daily, Page 1
