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Development of Hosting ISPs’ Secondary Liability for Primary Copyright Infringement in China – As Compared to the US and German Routes

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Abstract

This article takes a comparative approach to studying the development of hosting ISPs’ secondary liability in China, namely by referring to relevant rules in the US and Germany as examples. In particular, this article compares how the courts interpret the main imputed factors in these three jurisdictions such as monitoring responsibility, knowledge of infringement, measures against repeating infringement, benefit from infringement, and inducement. Through the aforesaid comparison, this article notes that the development of hosting ISPs’ secondary liability in China has been deeply affected by the relevant rules in the US and Germany, but it is also marked with its own characteristics such as requiring the hosting ISP to exert a higher level of duty of care on hot-play films and television dramas, and famous works. Moreover, this comparison also reveals that although China, the US, and Germany mainly rely on different approaches to solve hosting ISPs’ secondary liability, the recent case decisions in these three jurisdictions have shown some common tendencies, for example, receiving benefits has become a less important imputed factor, and the courts tend to pay more attention to hosting ISPs’ intent and commercial model when deciding liability.

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Notes

  1. 17 U.S.C. §512(m)(1).

  2. Patry ( 2009 ).

  3. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984).

  4. Id.

  5. See Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19, 30–31 (2nd Cir. 2012).

  6. Directive 2000/31/EC, Art. 15.

  7. Düsseldorf District Court, Störerhaftung des Filesharing-Betreibers, 2008 MMR 759 (quoting Barazza 2012).

  8. Hamburg Court of Appeal, Haftung eines Sharehosting-Dienstes für rechtsverletzende Inhalte – Rapidshare II, 2012 GRUR-RR 335, (quoting Id).

  9. See The Interpretation of the Supreme People’s Court on Several Issues Concerning Application of Law in the Trial of Cases involving disputes about Infringing Right to Internet dissemination of information (2000), this Interpretation brought in “notice-delete” mechanism and subpoena calling for information to identify infringer from DMCA 512.

  10. Id, the Interpretation did not address the issue of an ISP’s monitoring responsibility.

  11. vale.com v. tudou.com, No. 19 Hu Yi Zhong Min Wu (Zhi) ZhongZi (2009).

  12. See Wangyajun v. Lingshida Tech., No. 2775 Hai Min Chu Zi (2008).

  13. This statement was presented at a press conference on introducing “The Provisions of the Supreme People’s Court on Several Issues Concerning Application of Law in the Trial of Cases Involving Disputes about Infringing Right to Internet Dissemination of Information (2013)” when the official was questioned about “ISPs’ monitoring liability”, (15 October 2013). http://www.sipo.gov.cn/mtjj/2013/201301/t20130121_783586.html.

  14. People’s Republic of China Copyright Law (first revising draft), Art. 69, published by National Copyright Office in March 2012. In second revising draft, the same norm is also provided in Art. 69.

  15. The Provisions of the Supreme People’s Court on Several Issues Concerning Application of Law in the Trial of Cases Involving Disputes about Infringing Right to Internet Dissemination of Information (2013), Art. 8 (hereinafter “Provisions”).

  16. 17 U.S.C. §512(c)(1)(A).

  17. Directive 2000/31/EC, Art. 14(1).

  18. Telemedia Act, Art. 10.

  19. Regulation on the Protection of the Right to Internet Dissemination of Information, Art. 22(3) (hereinafter “Provisions”).

  20. Nimmer (2003).

  21. H.R. REP. 105551(II), 53.

  22. See D. Nimmer, supra note 20, at 358.

  23. Id.

  24. Id.

  25. See Io Group, Inc. v. Veoh Internets, Inc., 586 F.Supp.2d 1132, 1148 (N.D. Cal. 2008); Corbis Corporation v. Amazon.com, 351 F.Supp.2d 1090, 1108 (W.D. Washington 2004).

  26. See H.R. REP. 105-551(II), supra note 21, at 57–58.

  27. UMG Recordings, Inc. v. Veoh Internets, Inc., 665 F.Supp.2d 1099, 1108 (C.D.Cal. 2009).

  28. Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102, 1114 (9th Cir. 2007). As stated by the court, the burden of determining whether passwords on a website enabled infringement is not on the service provider. The website could be a hoax, or out of date. The owner of the protected content may have supplied the passwords as a short-term promotion, or as an attempt to collect information from unsuspecting users. The passwords might be provided to help users maintain anonymity without infringing on copyright. There is simply no way for a service provider to conclude that the passwords enabled infringement without trying the passwords, and verifying that they enabled illegal access to copyrighted material. We impose no such investigative duties on service providers.

  29. Id. As stated by the court, contrary to Perfect 10’s assertion, this disclaimer is not a “red flag” of infringement. The disclaimer specifically states that the webmaster has the right to post the files.

  30. Id. As stated by the court, describing photographs as “illegal” or “stolen” may be an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen, and shouldn’t place the burden of determining whether photographs are actually illegal on a service provider.

  31. Io Group, Inc. v. Veoh Internets, Inc., 586 F.Supp.2d 1132, 1149 (N.D. Cal. 2008). As stated by the court, with the video equipment available to the general public today, there may be little, if any, distinction between “professional” and amateur productions.

  32. UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 667 F.3d 1022, 1040 (9th Cir. 2011). In this case, the Court made a very interesting differentiation between the notifications from copyright owner and the third party. The CEO of Disney sent an e-mail to a Veoh investor, which stated that the movie Cinderella III and various episodes were available on Veoh without Disney’s authorization. The court decided that this e-mail did not qualify as a red flag for the following reason: as a copyright holder, Disney was subject to the notification requirements in §512(c)(3), which this informal e-mail failed to meet. However, if this notification had come from a third party, such as an Internet user, it might meet the “red flag” test, since it specified particular infringing material.

  33. See Io Group, Inc. v. Veoh Internets, Inc., supra note 31, at 1149.

  34. Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93, 110 (2d Cir. 2010).

  35. United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) (quoting United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993)).

  36. See Viacom Intern., Inc. v. YouTube, Inc., supra note 5, at 35. As stated by Federal Court of Second Circuit, §512(m) is explicit: DMCA safe harbor protection cannot be conditioned on affirmative monitoring by a service provider. For that reason, §512(m) is incompatible with a broad common law duty to monitor or otherwise seek out infringing activity based on general awareness that an infringement may be occurring.

  37. Viacom Int’l Inc. et al. v. YouTube et al., 07 civ. 2103 (LLS), 32 (S.D.N.Y. 18 April 2013).

  38. Fitzner ( 2011 ).

  39. Id.

  40. Munich Court of Appeal, Gewerbeschädigende Äußerungen in einem Meinungsforum im Internet, 2002 MMR 612.

  41. Spindler et al. (2008).

  42. Telemedia Act Sec. 10(1).

  43. See J. Fitzner, supra note 38, at 287.

  44. Düsseldorf District Court, Markenrechtsverletzung durch Onlineauktion, 2003 MMR 120–127.

  45. BT-Drs. 14/6098, S. 25, (quoting G. Spindler, et al., supra note 41, at 1531).

  46. See Spindler, supra note 41, at 1531.

  47. Id.

  48. Case C-236/08 to C-238/08, Google France, Google, Inc. v Louis Vuitton Malletier, Viaticum SA, Luteciel SARL, Centre national de recherche en relations humaines (CNRRH) SARL, Pierre-Alexis Thonet, Bruno Raboin, Tiger SARL, Para. 120.

  49. German Federal Supreme Court, 29 April 2010, Case No. I ZR 69/08 – Vorschaubilder.

  50. See Spindler, supra note 41, at 1531–1532. Also see J. Fitzner, supra note 38, at 289–290.

  51. Hoeren and Yankova (2012).

  52. See Provisions, supra note 15, Art. 13.

  53. Hua Xia Shu Ren v. Youku.com, No. 9200 Hai Min Chu Zi (2008).

  54. See Io Group, Inc. v. Veoh Internets, Inc., supra note 31, at 1149. In the decision, the court did not directly conclude that the clip qualified for “red flag”, but it can be implied from the phrasing: “Although one of the works did contain plaintiff’s trademark several minutes into the clip, there is no evidence from which it can be inferred that Veoh was aware of, but chose to ignore, it.”

  55. Wang (2008).

  56. See Provisions, supra note 15, Art. 12.

  57. “Hot-play” is a term that can always be found in the decisions made by Chinese courts, and finally was incorporated into the Provisions by People’s Supreme Court. In terms of relevant decisions, “hot-play” has always been used to describe the audio–video works which are newly distributed, popular and still on screen.

  58. See Provisions, supra note 15, Art. 9.

  59. Id, Art. 10.

  60. 17 U.S.C. §512(i)(1)(A).

  61. See Perfect 10, Inc. v. CCBill, LLC, 340 F Supp 2d 1077, 1090 (C.D. Cal, 2004). This opinion has been upheld by 9th Circuit Court in the appealing instance; see Perfect 10, Inc. v. CCBill, LLC, supra note 28, at 1113.

  62. Id.

  63. See Ellison v. Robertson, 357 F3d 1072, p. 1080 (9th Cir, 2004).

  64. See Perfect 10, Inc. v. CCBill, LLC, supra note 28, at 1113.

  65. See Perfect 10, Inc. v. CCBill, LLC, supra note 61, at 1090.

  66. Id, at 1093.

  67. Id, at 1089.

  68. Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1103 (W.D. Wash. 2004). See also Io Group, Inc. v. Veoh Internets, Inc., supra note 31, at 1143–1145.

  69. Id, Io Group, Inc. v. Veoh Internets, Inc.

  70. Aimster, 334 F.3d 643, 655 (7th Cir. 2003).

  71. Copyright Act, Sec. 97(1).

  72. Leistner (2012).

  73. Id, at 724.

  74. Sharehoster II, 2010 MMR 51, 53 (quoting Matulionyte and Nérisson 2011).

  75. Rapidshare, 2010 MMR 483, 484 (quoting R. Matulionyte and S. Nérisson, at 66–67).

  76. M. Leistner, supra note 72, at 725.

  77. Id.

  78. Id.

  79. German Federal Supreme Court, 15 August 2013, case No. I ZR 80/12 – Rapidshare, para. (b).

  80. “Link collections” means the collections of search results after searching for specific content through search tools. For instance, if a person searches keywords of “alone in dark, Rapidshare” in Google, the results are links from which a person can download “alone in dark” residing on Rapidshare.

  81. German Federal Supreme Court, supra note 79, para. (c).

  82. General Principles of the Civil Law of the People’s Republic of China, Art. 134. The legislators in China used Art. 1004 of German Civil Law as an important reference, which provides that “If the ownership is interfered with by means other than removal or retention of possession, the owner may require the disturber to remove the interference. If further interferences are to be feared, the owner may seek a prohibitory injunction”, when drafting Art. 134. This kind of “Störerhaftung” has also been reaffirmed by the newly adopted China Tort Law in Art. 15.

  83. Yinian v. Taobao, No. 40 Hu Yi Zhong Min Wu (Zhi) ZhongZi (2011). This case was published in the Bulletin of People’s Supreme Court (Vol. 1, 2012) as a guiding case.

  84. Han Han is one of most distinguished young writers who has many fans in China, and in May 2010, he was named one of most influential people in the world by Time magazine. The other party, Baidu, can be seen as the Chinese Google, and is one of the most successful Internet companies in China. Therefore, the dispute between these two parties attracted considerable attention and, finally, this case was selected as one of ten annual IP cases (2012) by the People’s Supreme Court.

  85. Han Han v. Baidu, No. 5558 Hai Min Chu Zi (2012).

  86. Id.

  87. Id.

  88. The Provisions of the Supreme People’s Court on Several Issues Concerning Application of Law in the Trial of Cases involving disputes about Infringing Right to Internet dissemination of information (draft published for discussion), Art. 8 (6).

  89. See Provisions, supra note 15, Art.9(6).

  90. L’Oréal SA v. eBay, C–324/09 (AG’s Opinion), para. 182. In this case, the AG first admitted that nothing in Directive 2004/48 would prohibit injunctions against the intermediary requiring not only the prevention of the continuation of a specific act of infringement but also the prevention of repetition of the same or a similar infringement in the future if such injunctions are available under national law. However, he also emphasized legal certainty and that an injunction should not impose impossible, disproportionate or illegal duties such as a general obligation to monitor. He concluded that an appropriate limit for the scope of injunctions may be that of a double requirement of identity.

  91. See Han Han v. Baidu, supra note 85.

  92. Id.

  93. See Io Group, Inc. v. Veoh Internets, Inc., supra note 31, at 1143.

  94. During a workshop about “video-sharing website’s secondary liability” held in Center for Studies of Intellectual Property Rights of Zhongnan University of Economics and Law, the former legal director, Mr. Guangliang Cai delivered an introduction about the anti-piracy measures adopted by Tudou, which covered the database of black content. The relevant statement can also be found in Tudou’s copyright policy from its website, see http://www.tudou.com/about/cn/copyright.html.

  95. See Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).

  96. See 17 U.S.C. §512 (c)(1)(B). According to this Article, if a hosting ISP wants to be exempted from secondary liability, it should not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.

  97. H.R. Conf. Rep. No. 105-796, 73.

  98. Costar Group Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 704 (D. Md. 2001).

  99. See Perfect 10, Inc v. CCBill, LLC, supra note 28, at 1117.

  100. Costar Group Inc. v. Loopnet, Inc., 373 F.3d 544, 555 (4th Cir. 2004).

  101. See UMG Recording, Inc. V. Veoh Internet, Inc., supra note 32, at 1042–1045. In this case, the plaintiff UMG is a recording company which has copyright over considerable amounts of music, some of which was uploaded onto the defendant’s running video-website Veoh, so the plaintiff sued Veoh for copyright infringement.

  102. See H.R. REP. 105-551(II), supra note 21, at 54.

  103. Id.

  104. See Costar Group Inc. v. Loopnet, Inc., supra note 98, at 720. In this case, the court held that it would not be considered as a direct financial benefit “where the infringer makes the same kind of payment as non-infringing users of the provider’s service”.

  105. See Perfect 10, Inc v. CCBill, LLC, supra note 28, at 1117; see Io Group, Inc. v. Veoh Internets, Inc., supra note 31, at 1150. This standard can be traced to the classic case of Fonovisa v. Cherry Auction (76 F.3d 259, p. 264 (9th Cir. 1996)). In this case, the 9th Circuit held that the sale of pirate recordings in a Cherry Auction swap meet is a “draw” for customers, so the defendant who ran this swap meet directly benefited from infringements.

  106. Id, Perfect 10, Inc v. CCBill, LLC, at 1118. In this case, the defendant, CWIE, hosted websites for a fee, and some of these websites included content which infringed the plaintiff’s copyright. First, the 9th Circuit held that the defendant’s hosting of websites for a fee was not sufficient to prove the infringements functioning as a “draw” in the context of vicarious liability. Further, by noting that “receiving a one-time set-up fee and flat, periodic payments for service from a person engaging in infringing activities would not constitute receiving a ‘financial benefit directly attributable to the infringing activity’”, the 9th Circuit held that the hosting fee received by the defendant was not directly attributable to infringements.

  107. Io Group, Inc. v. Veoh Internets, Inc., supra note 31, at 1150.

  108. See Viacom v. YouTube, 718 F.Supp.ed 514, 517 (S.D. N.Y. 2010). In this case, the court held that in any event the provider must know of the particular case before he could control it. This interpretation of “control” has been overruled by the appeal court, which specified that “control” has nothing to do with hosting ISPs’ “item-specific” knowledge of infringements. See Viacom v. YouTube, supra note 5, at 36–38.

  109. See Viacom v. YouTube, supra note 5, at 36–38. In this case, the court summarized all decisions about the control provision in the DMCA 512(c)(1)(B), and concluded that the prior case law completely agreed with the opinion that the control provision required something more than the “ability to remove or block” the hosted content.

  110. According to the “notice-take down” mechanism, once a hosting ISP receives a competent notice about infringing content, it should expeditiously remove or disable access to material alleged to be infringing. Therefore, the DMCA 512 has already implied that a qualified hosting ISP should have the right and ability to remove or disable access to materials posted on its website. A similar analysis can also be found in the relevant US case law. For example, in the case of Hendrickson v. Ebay Inc., the Court stated “Congress could not have intended for courts to hold that a service provider loses immunity under the safe harbor provision of the DMCA because it engages in acts that are specifically required by the DMCA.” See Hendrickson v. Ebay Inc., 165 F. Supp. 2d 1082, p. 1093–94. (C.D. Cal. 2001).

  111. See Viacom v. YouTube, supra note 5, at 38.

  112. See Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, p. 1173 (C.D. Cal. 2002). In this case, the Cybernet ran a web-service called “Adult Check”, and the plaintiff, Perfect 10, was a corporation owning copyright over considerable pornographic content. During the hearing, the court was unsure about whether Cybernet was a qualified ISP. However, the court held that even with the assumption of Cybernet’s qualification as an ISP, Cybernet could still not enjoy the shield of the “safe harbor” provision, because it failed to conform to the DMCA 512(c)(1)(B).

  113. See Hendrickson v. eBay, Inc.,supra note 110, at 1094.

  114. See Corbis Corporation v. Amazon.com, Inc., supra note 68, at 1110.

  115. The detailed discussion can be found in the following section “inducement liability in US”.

  116. KG: Internetplattform zum Austausch von Fotodateien, 2010 MMR 204. The other three reasons are as follows: (1) in particular, the uploaded photographs went through a selecting and checking procedure before they were publicly accessible; (2) the copyright owners of the photographs were pointed out but in an unnoticeable and indiscreet way; and (3) in the front part of the website, the corresponding philosophy of the operator was displayed under its logo, which was “publish modern and time-spiritual photos”.

  117. Hamburg District Court, Haftung eines Plattformbetreibers – “YouTube”, 2010 MMR 834. The other reasons are as follows: (1) the logo of YouTube appeared on the upper right corner of videos because of a pre-designed website frame, when the downloadable videos were on play, but by contrast the signs for pseudonym of the uploading-users were very small and appeared on a separate part of the website apart from the videos; (2) the defendant sorts the uploaded videos into different categories, and when a video is clicked, the similar videos will show up on the right side of the webpage automatically; and (3) YouTube requires the uploaders to grant it the right to use these videos.

  118. German Federal Supreme Court, Verwendung fremder Fotografien für Rezeptsammlung im Internet – marions-kochbuch.de, 2010 NJW-RR 1276–1278. In this case, the defendant operated a website called chefkoch.de for the public to upload cooking recipes and corresponding photographs and the plaintiff ran a website called marions-kochbuch.de which introduced cooking recipes with depicting pictures. The plaintiff found that some of his copyrighted cooking instructions had been uploaded to the defendant’s website, so he launched a suit against the defendant for copyright infringement.

  119. Id, German Federal Supreme Court, at 1276.

  120. BuSheng v. YoBo, No. 6939 Hai Min Chu Zi(2008). In this case, the plaintiff BuSheng owned copyright of certain musical works, some of which had been uploaded to the defendant’s websites by Internet users, so the plaintiff sued YoBo for copyright infringement.

  121. CiWen v. 56.com, No. 9 Er Zhong Min Zhong Zi (2008). In this case, a television series call “Jia” (Family) owned by the plaintiff CiWen had been uploaded to the defendant’s website “56.com” without permission, so the plaintiff sued “56.com” for copyright infringement.

  122. joy.cn v. 56.com, No. 24750 Hai Min Chu Zi (2008). In this case, some copyrighted videos owned by the plaintiff “Joy.cn” had been uploaded to the defendant’s website “56.com” without permission, so the plaintiff sued “56.com” for copyright infringement.

  123. joy.cn v. 6room.com, No. 22186 Hai Min Chu Zi (2008).

  124. This judicial guideline, called “Opinions of Beijing Higher People’s Court on Several Issues Concerning Disputes about Internet Copyright Infringements (trial)” (hereinafter “Opinions”), is not a mandatory legal document, because unlike the People’s Supreme Court in China, the Beijing Higher People’s Court has no statutory rights to promulgate any judicial interpretation of general application. However, Beijing, as one of the two cities (the other is Shanghai) hearing most of the disputes about Internet copyright infringement in China, the courts there always take a lead in solving these disputes and have accumulated considerable judicial experience in this respect. Therefore, the judicial guideline provided by the Beijing Higher People’s Court definitely has widespread influence in China and will be used as an important reference by other courts.

  125. Id, Art. 24(3).

  126. See Provisions, supra note 15, Art. 11.

  127. MGM Studios Inc. v. Grokster, 545 U.S. 913, 942.

  128. Id, at 913.

  129. Arista Records, LLC. v. Lime Group, LLC, 784 F. Supp. 2d 398, 424 (S.D.N.Y. 2011). This is a case against p2p software, and since running a p2p software is not a typical Internet service covered by “safe harbor” provision, the court need not discuss the relationship between inducement liability and the “safe harbor” provision.

  130. See Columbia Pictures Industries, Inc. v. Gary FUNG, 2009 WL 6355911 (C.D. Cal.), 9–15. In this case, the defendant, Gary Fung, ran several websites which would “collect, receive, index, and make available descriptions of content, including so-called ‘dot-torrent files,’ and would also provide access to ‘open-access’ BitTorrent Trackers.” Consequently, the district court denied treating the defendant’s service as a transitory digital Internet communication or host rather than an information location tool. However, the court made a clear statement about the relationship between inducement liability and the “safe harbor” provision, so it is still relevant to the discussion here. Moreover, in the appeal instance, the 9th Circuit held that the defendant could be seen as a hosting ISP.

  131. Id, at 18.

  132. See Anthony Reese (2011).

  133. See Columbia Pictures Industries, Inc. v. Gary FUNG, 710 F.3d 1020, 1032–1037. (9th Cir. 2013).

  134. Id, at 1040.

  135. Id.

  136. Id, at 1047. Quoting 17 U.S.C. §512(c)(1)(A)(ii), 17 U.S.C. §512(c)(1)(B), 17 U.S.C. §512(d)(1)(B), 17 U.S.C. §512(d)(2).

  137. Id, at 1043.

  138. Id.

  139. Id.

  140. Id. In this case, the 9th Circuit Court was still not entirely confident about “red flag” knowledge already being fulfilled, for the reason that it was uncertain whether exclusion from the §512(c) safe harbor because of actual or “red flag” knowledge of a specific infringing activity applied only with regard to liability for that infringing activity, or more broadly.

  141. Id, at 1045.

  142. Id.

  143. See Provisions, supra note 15, Art. 7.

  144. Guide for Hearing Copyright Disputes involving Video-sharing (hereinafter “Guide”), Art. 3.

  145. chineseall.com v. 178.com, No. 8854 Chao Min Chu Zi (2013).

  146. In terms of the Provisions promulgated by People’s Supreme Court, once the inducing infringement has been concluded, “safe harbor” provisions are not applicable anymore.

  147. See MGM Studios Inc. v. Grokster, supra note 127, at 913.

  148. See chineseall.com v. 178.com, supra note 145.

  149. See what has been discussed in C(b) – “Störerhaftung – disturber’s liability in Germany”.

  150. Perfect 10, Inc. v. RapidShare, No. 09-CV-2596 H, 2 (S.D. Cal., 2010); see German Federal Supreme Court, supra note 79, at 1.

  151. Id, Perfect 10, Inc. v. RapidShare, at 6–11.

  152. German Federal Supreme Court, supra note 79, para. (b).

  153. Id, para. (c), para. 21.

  154. The “original” here means the videos made by amateur Internet users rather than professional producers.

  155. This kind of division can be found on nearly all main video-sharing websites in China, such as “youku.com”, “tudou.com”, and “video.sina”.

  156. nubb.com v. Tudou.com, No. 62 Hu Gao Min San (Zhi) ZhongZi (2008).

  157. GuanShi Culture v. 6room.com, No. 31332 Hai Min Chu Zi (2008). The HaiDian District Court also drew a similar conclusion in another case GuanDianWeiYe v. Youku.com, see No. 14023 Hai Min Chu Zi (2008).

  158. See Provisions, supra note 15.

  159. Articles 9 and 12 of the Provision list some instances where service providers should be concluded to “should know the infringements”, and these two articles end with “other factors” to be considered, which leaves lower courts enough room to make their own judgments.

  160. See Guide, supra note 144, Art. 7(1).

  161. vale.com v. Tudou.com, No. 16 Hu Yi Zhong Min Wu (Zhi) ZhongZi (2009). In another case, nubb.com v. Tudou.com, the Shanghai Higher People’s Court made a similar statement on protecting “hot-play movies”, see nubb.com v. Tudou.com, supra note 156.

  162. See Han Han v. Baidu, supra note 85.

  163. JiaHua Culture v. 56.com, No. 20595 Chao Min Chu Zi (2013).

  164. See Provisions, supra note 15, Art. 12.

  165. See Opinions, supra note 124, Art. 19(1). According to Art. 19(1), where the alleged infringing content includes hot-play audio–video works, popular music works or other types of works with good fame, or the performances and audio–video products, and this content is located on the homepages, other main pages or other pages which can be obviously accessed by service providers, then the hosting ISPs should be presumed to know about this infringing content.

  166. See Guide, supra note 144, Art. 8(1).

  167. The courts in Beijing have jurisdiction over most copyright disputes on the Internet, so the Opinion issued by Beijing Higher People’s Court strongly affects cases about hosting ISPs’ liability.

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Authors and Affiliations

  1. Maastricht, The Netherlands

    Jie Wang (PhD Researcher, Faculty of Law, Maastricht University (Maastricht, The Netherlands); PhD Candidate, Center for Study of Intellectual Property Right, ZhongNan University of Economics and Law (Wuhan, China); Scholarship Holder, Max Planck Institute for Innovation and Competition (Munich, Germany)

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Correspondence to Jie Wang.

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I would like to thank Prof. A.W.J. Kamperman Sanders for his supervision; Prof. Dr. Reto M. Hilty and Dr. Silke von Lewinski for their help in my study on hosting ISPs’ secondary liability in Germany; and Prof. Llewellyn Gibbons and Prof. Lars S. Smith for the correction done by them. This paper was sponsored by the China-EU School of Law (CESL) at the China University of Political Science and Law (CUPL) http://www.cesl.edu.cn. The activities of CESL at CUPL are supported by the European Union and the People’s Republic of China.

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Wang, J. Development of Hosting ISPs’ Secondary Liability for Primary Copyright Infringement in China – As Compared to the US and German Routes. IIC 46, 275–309 (2015). https://doi.org/10.1007/s40319-015-0325-0

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