*AI-generated translation, for reference only.

Keywords: civil; copyright ownership and infringement; infringement of computer software copyright; game software; infringement determination; source code comparison

Case Facts

Beijing [REDACTED] Network Technology Co., Ltd. (hereinafter "Beijing [REDACTED] Company") alleged as follows: The online game "Lai Dui Wo Ah" was independently developed by Beijing [REDACTED] Company, which duly registered the computer software copyright therefor. Changsha [REDACTED] Information Technology Co., Ltd. (hereinafter "Changsha [REDACTED] Company"), as the developer and operator of the APP known as the "Bamen Shenqi Game Box," uploaded a cracked version of "Lai Dui Wo Ah" to the game box without authorization, thereby infringing Beijing [REDACTED] Company's right of communication through information networks.

Beijing [REDACTED] Company accordingly requested that the court order: (1) Changsha [REDACTED] Company to immediately cease infringing the computer software copyright of Beijing [REDACTED] Company in the game "Lai Dui Wo Ah"; (2) Changsha [REDACTED] Company to publish an apology statement in a prominent location on its official website, its WeChat public account "Bamen Shenqi," and the homepage of the "Bamen Shenqi Game Box" to eliminate the adverse effects; (3) Changsha [REDACTED] Company to compensate Beijing [REDACTED] Company for economic losses in the amount of RMB 50,000 (same currency unit hereinafter); and (4) Changsha [REDACTED] Company to bear the litigation costs of this case.

Changsha [REDACTED] Company defended as follows: The subject matter protected by computer software copyright is the computer program itself, not the game visuals; accordingly, this case should be decided on the basis of a source code comparison, absent which infringement cannot be established. The accused infringing game was uploaded by a third party; Changsha [REDACTED] Company was merely a network service provider and had removed the game from its platform two years prior, and therefore should not bear liability for infringement. Beijing [REDACTED] Company filed suit two years after collecting evidence, evidencing a clear subjective intent to maximize damages for profit, and the amount of compensation claimed was grossly excessive.

The court found through trial as follows: Beijing [REDACTED] Company is the copyright holder of the game software entitled "Lai Dui Wo Ah." Changsha [REDACTED] Company is the operator of the APP known as "Bamen Shenqi." The "Bamen Shenqi" APP had made available for download an online game titled "Lai Dui Wo Ah (Latest Version) [Qiran Cracked — No Redistribution]," which identified the uploader as Chu Qiran; the game's listed author, description, and other information were consistent with those of the rights game, and the game's operating interface also displayed Beijing [REDACTED] Company's "Chenguang" trademark. At the first instance, Changsha [REDACTED] Company acknowledged that the accused infringing game was substantially consistent with Beijing [REDACTED] Company's rights game in terms of the operating interface, character designs, background music, game rules, and storyline. Neither party submitted the source code of the rights software or the accused infringing software.

On November 30, 2022, the Changsha Intermediate People's Court of Hunan Province rendered Civil Judgment (2022) Xiang 01 Zhi Min Chu No. 367, dismissing Beijing [REDACTED] Company's claims. Beijing [REDACTED] Company appealed. On February 27, 2024, the Supreme People's Court rendered Civil Judgment (2023) SPC IP Civ Final No. 1148: (1) revoking Civil Judgment (2022) Xiang 01 Zhi Min Chu No. 367 of the Changsha Intermediate People's Court of Hunan Province; (2) ordering Changsha [REDACTED] Company to compensate Beijing [REDACTED] Company for economic losses in the amount of RMB 10,000 within ten days from the date on which the judgment becomes legally effective; and (3) dismissing Beijing [REDACTED] Company's other claims.

Judge's Opinion

The central issue in this case was whether Changsha [REDACTED] Company infringed Beijing [REDACTED] Company's right of communication through information networks in respect of the game software "Lai Dui Wo Ah."

Beijing [REDACTED] Company is the copyright holder of the game software at issue. Changsha [REDACTED] Company's APP had previously made the accused infringing game available for download, and both parties now confirm that the accused infringing game has been taken down. Changsha [REDACTED] Company claimed that the game was uploaded by a third party and has since been deleted, thereby making it impossible to submit the source code of the accused infringing game software; accordingly, there is no basis for a source code comparison in this case, and it is necessary to determine whether the software programs are identical or substantially similar through an analysis of the in-case evidence and the established facts. In the absence of a source code comparison, whether game software programs are identical or substantially similar may be manifested in a relatively clear and intuitive manner through the external expressions of the game software, such as the operating interface, character designs, and storyline. Although, from a technical standpoint, identical or substantially consistent external expressions — such as the operating interface, character designs, and storyline — can be achieved through different source code, given the purpose and characteristics of game software, the probability that two independently developed game software programs would have identical or substantially consistent operating interfaces, character designs, storylines, and the like is low. Changsha [REDACTED] Company acknowledged that the accused infringing game and Beijing [REDACTED] Company's rights game were substantially consistent in their operating interfaces, character designs, storylines, and other aspects. Combined with the facts that the title of the accused infringing game identifies it as a cracked version of the rights game, that the listed author, description, and other information are consistent with those of the rights game, and that Beijing [REDACTED] Company's "Chenguang" trademark also appears on the operating interface, it is highly probable that the accused infringing game software is a plagiarized copy of the rights software. Accordingly, given that Changsha [REDACTED] Company was unable to provide evidence proving that the accused infringing software differs from or is materially distinct from the rights software, it may be presumed that the two are substantially similar. Taking into account the facts that Changsha [REDACTED] Company claimed the accused infringing game was uploaded by a third party without disclosing that third party's identity, and that Changsha [REDACTED] Company exercised review authority over games uploaded to its "Bamen Shenqi" APP, Changsha [REDACTED] Company's provision of the accused infringing game for download on its "Bamen Shenqi" APP — thereby enabling members of the public to access the work at a time and place individually selected by them — infringed Beijing [REDACTED] Company's right of communication through information networks in respect of the game software "Lai Dui Wo Ah."

Judgment Digest

Source code comparison is not a mandatory step in the determination of computer software copyright infringement. Where a source code comparison is not feasible, the determination of whether online game software programs are substantially similar may be made through a comprehensive analysis of the consistency between the accused infringing game software and the rights software in terms of title, descriptive information, operating interface, character designs, storyline, commercial markings, and other aspects, having regard to the purpose and characteristics of the game software.

Related Index

*Articles 3, 10, 53, and 54* of the *Copyright Law of the People's Republic of China* (The provisions applicable to this case are *Articles 3, 10, 48, and 49* of the *Copyright Law of the People's Republic of China* as effective April 1, 2010)

*Articles 2 and 8* of the *Regulations on the Protection of Computer Software*

First Instance: Changsha Intermediate People's Court of Hunan Province, Civil Judgment (2022) Xiang 01 Zhi Min Chu No. 367 (November 30, 2022)

Second Instance: Supreme People's Court, Civil Judgment (2023) SPC IP Civ Final No. 1148 (February 27, 2024)