Technology neutral and non-neutrality of technology - Comment the first case of P2P

Analysis: Dong Ying (GE (China) Medical Group, intellectual property lawyers) Site Date :2007-8-9 8:23:10

December 19, 2006, the Beijing Second Intermediate People's Court on the plaintiff, Shanghai Busheng Music Culture Media Co., Ltd. (hereinafter referred to as Shanghai Busheng Corporation) v. defendants Beijing flight network's software development Co., Ltd. (hereinafter referred to as "Beijing Flight Network Company "), Beijing ships Sheng Fang Guoan Information Technology Co., Ltd. (hereinafter referred to as" ship Sheng Fang security company ") the use of Kuro (cool music) software available to the public to share the song, search and download service, violations of the right to dispute the plaintiff producers of sound recordings case (hereinafter referred to as "Kuro case") made a first instance verdict. ?Note: See Beijing Second Intermediate People's Court Civil Judgement (2005), two characters in the Republic of China No. 13 739 No.? Kuro (cool music) software is a P2P (Peer to Peer) "point to point" transmission software, P2P class intellectual property cases since 2001, has attracted wide attention abroad, but called the case the first case assessment P2P in China.
The author believes that the current class and P2P search engine types of intellectual property cases, the "technology-neutral and non-neutrality of technology" has become a technical and legal aspects of such cases, the core issue; particularly neutral technical ?Note: The "neutral technical "means even though some users would use them for illegal (infringing) use, but could be material used for legitimate purposes (substantial lawful uses) technology. See Grokster case in the United States Supreme Court ruling www.eff.org/IP/P2P/MGM_v_Grokster/20050301_innovation.pdf? whether a "non-neutrality of technology" issue Note: "non-neutrality of technology" refers to the "neutral of technology "used in legal or illegal purposes?, will be to determine whether the composition (common, help) infringement of the key. In the case of Kuro, determine the nature of this core issue, the case has become a qualitative basis.

First, technology neutral

The most common example that is, the knife manufacturer and distributor associations for production and sale of kitchen knives and illegal? "Technology neutral" is often part of the accused in such cases the core of defense. Classic cases in foreign countries "Sony" Case ?Note: See Tin Fung Chang, "third-party copyright infringement liability with the dealer - MGM Studios v. case assessment", http://www.netlawcn.com / second / more_member.asp? mno = 84. U.S. Supreme Court in 1984, the Sony Corp. Of America v. Universal City Studios case ("Sony case") Description: The case involved what we today call VCR recorder products. Copyright argue Sony VCR recorder company as manufacturers respond to VCR users copy copyrighted programs, tort liability, because the user a tool for the implementation of the violations provided by Sony and the Sony Corporation had known about this infringement behavior occur. But the United States Supreme Court held that such copying did not constitute copyright infringement is "fair use" (fair use), and pointed out that: In all the evidence found no express or implied, Sony had to lure users to infringement; the only way to imagine one may know that according to some users might VCR for some illegal purpose, and still sell their products produce the "connivance of infringement" theory. However, as VCR's use is mainly for commercial Shang non-infringement, the Supreme Court final decision will not be manufactured by them Chang Shang Jin Jin as distribution of this Shangpinjiubei held liable. ?, "Technology neutrality" was established as a principle. ?Note: The "technology neutrality" is the Sony case established the principle that "to the public for non-infringing uses of a major provider of goods should not occur in the use of goods liable for infringement, unless The provider of goods actually know the specific circumstances of infringement, and in informed not to take any action. " ? Since technology into the Internet age, search engines and P2P tool in such cases, this principle has become a shield for the defendant. Does not know that there can not stop any shield, when "technology neutrality" principle has its preconditions set up: (i) the product or technology is mainly used for for non-infringing uses; and (ii) to provide the product or technology are not "actual knowledge of specific infringement case and in informed not to take any action." I understand that is not the neutrality of technology for "non-neutrality of technology."

Second, non-neutrality of technology

"Non-neutrality of technology" is the plaintiff in the "technology neutrality" principle advocated the rights of a back door, because once the neutral technology for "non-neutrality of technology" will lead the technology is no longer "neutral." "Non-neutrality of technology," It is for this are: 1. Subjective aspects: (i) whether the defendant had actual knowledge of the specific technology used for infringement cases; (ii) the defendant's business in the technology status and source of income. 2. The objective aspect: (i) the primary purpose of the technology (the background), real or involved in major application fields (small ??); (ii) whether the defendant to help the implementation of technology for infringement, such as whether express or suggest to lure users to use the technology infringement; (iii) whether the defendant did not knowingly take any action, whether the application of the principle of safe haven. Kuro first instance verdict in the case ((2005), two in the Republic of China Zi No. 13739), the court on the two accused "non-neutrality of technology" of the analysis are as follows: Based on the above analysis, the court finds that: (i) the defendant ship Sheng Fang On the right company for network users without the permission of the software using Kuro 53 songs spread of the behavior involved in providing help, violated the plaintiff enjoyed the right of producers of sound recordings; (ii ) accused Beijing flight network company not only security for the defendant's ship Sheng Fang these violations to provide technical support and direct participation in their own names these violations; (iii) to sentence the two defendants shared tort liability. P2P case is the first case is the first time in the judgments of the Court clearly stated the defendant's conduct constituted "contributory infringement", which finds that copyright infringement "indirect responsibility" aspect is a major breakthrough. Note: See the king to move "on the copyright law of" indirect responsibility "", in "Technology and the Law" No. 2, 2005

Three typical cases reviewed
Summarized view of the above "non-neutrality of technology" It is our typical case involved a technology-neutral "non-neutrality of technology" problem analysis and summarized as follows:

Table Notes:
1. Napster Case Note: see Dong Ying "RIAA v. Napster music copyright infringement case analysis", in "intellectual property" No. 2 of 2001.

2. Grokster Case Note: See Tin Fung Chang, "third-party copyright infringement liability with the dealer - MGM Studios v. case assessment," ", in http://www.netlawcn.com/second/more_member. asp? mno = 84: U.S. Supreme Court in June 2005 MGM Studios Inc. v. Grokster case has revealed the new guidelines - "dealers in the distribution of their products if the process clearly, or to take affirmative steps to help others to infringe copyright, encourage others to infringe, then the dealer would deal with third-party tort liability.

3. Baidu MP3 Series Case Note: see Dong Ying, "China's search engine suffered torture", in "Electronic Intellectual Property Rights" No. 12, 2005; see Haidian District People's Court of Shanghai Busheng Music Culture Media Co., Ltd. v. Beijing Baidu Net Technology Limited infringement dispute the right of producers of sound recordings of the First Trial Civil Judgement (2005) Sea Republic of China Zi No. 14665; and the Beijing Municipal First Intermediate People's Court of the seven cases: (1) Gold Label Entertainment Limited v Beijing Baidu Net Technology Limited infringement disputes Information Network Transmission Right of First Instance Civil Judgement (2005), one in the Republic of China Zi No. 7965; (2) due east Records Ltd. v. Network Communications Technology Co., Ltd. Beijing Baidu violated Information Network Transmission Right dispute, the first trial Civil Judgement (2005) 1 in the Republic of China Zi No. 7978; (3) Universal Music Ltd. v. Network Communications Technology Co., Ltd. Beijing Baidu infringement disputes Information Network Transmission Right of First Instance Civil Judgement (2005), one of the people Chu Zi No. 8474; (4) Cinepoly Records Ltd. v. Network Communications Technology Co., Ltd. Beijing Baidu infringement disputes Information Network Transmission Right of First Instance Civil Judgement (2005), one in the Republic of China Zi No. 8478; (5) EMI Group Hong Kong Ltd. v. Network Communications Technology Co., Ltd. Beijing Baidu infringement disputes Information Network Transmission Right of First Instance Civil Judgement (2005), one in the Republic of China Zi No. 8488; (6) Warner Music Ltd. v. Network Communications Technology Co., Beijing Baidu Information Network Transmission Right infringement disputes, the first trial Civil Judgement (2005), one in the Republic of China Zi No. 8995; (7) SONY BMG Music Entertainment (Hong Kong) Ltd. v. Network Communications Technology Co., Ltd. Beijing Baidu violated the right to dispute information network communication case, the first trial Civil Judgement (2005), the first 10,170 words of a number in the Republic of China.

IV Summary
We have summarized above involve "technology neutral" in case of "non-neutrality of technology" standard to judge, based on this analysis of whether the establishment of the infringement, and this in typical cases to be confirmed. The author believes that "non-neutrality of technology," the greater the possibility of the establishment, then set up the possibility of infringement of such cases the greater; such as "non-neutrality of technology" degree is not obvious, then the case for trial will be possible " technology neutrality "principle. So, these are on "non-neutral technical application" problem and its scope Di judge, will be different times and different economic interests of the different technologies the context of development benefits both a focus of the same.

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