In February, 2111, Yang published an article entitled "What do you know about homosexuals in the entertainment industry" on a website under the pseudonym of "Hai", and claimed that it should not be reproduced. But after that, dozens of websites published this article. Yang sued more than a dozen websites to Beijing No.1 Intermediate Court and Beijing No.2 Intermediate Court respectively. Beijing Qianlong News Network is one of them. Because Qianlong. com published an article entitled "Perspectives on Homosexuality in Film and Television Industry" in the "Comments by Netizens" column of its website, the original author Yang thought that Qianlong. com's behavior was to change the title without authorization and publish the original author's article, which infringed its copyright, so he sued Qianlong. com to the Second Intermediate People's Court.

As this case is the first case of copyright infringement dispute on the Internet in Beijing, we must accurately grasp the legal issues involved and be familiar with various technical issues of the Internet, so as to effectively protect the legitimate rights and interests of the parties concerned. After fully preparing for this, the author published the following proxy words (summary) in court.

1. The "Comments by Netizens" column of Qianlong. com is a "message board" of bulletin board service, which provides information release conditions for Internet users in an interactive way. As a network content service provider, Qianlong. com provides information publishing and information inquiry for Internet users as one of its services, and "comments by netizens" is the interface it provides for Internet users to express their opinions. The articles in this interface are all published by users on the Internet. In this case, Qianlong. com neither reproduced the articles published by "insiders" nor "changed the title without authorization".

second, all the contents published by Qianlong. com are edited by the news center. However, Internet users do not express their opinions through editing templates. Every news information page of Qianlong. com has an interface of "expressing opinions" or "comments by netizens", which anyone can enter. Thus, there are different entrances for editing and publishing articles and Internet users to express their opinions. The former must pass through editing templates, while the latter does not.

third, as we all know, there is a vast amount of information transmitted on the Internet, and the relevant laws do not require Internet service providers to take responsibility for the infringement of others. In this case, the user "insider" changed the title of the original author's article and pasted it in the column of "comments by netizens" without authorization, and Qianlong.com was unable to verify whether its content was infringing. 3. The plaintiff failed to fulfill the obligation to warn Qianlong. com within the legal time, and Qianlong. com will remove the infringing articles after receiving the complaint. To sum up, Qianlong. com is not at fault for the infringement of "insiders" of Internet users.

The court accepted the lawyer's opinion after trial.

On the 2nd and 21th, Kunming Intermediate People's Court made a first-instance judgment on the highest compensation for the first case of network infringement in Yunnan, and found that Kunming Haitang Travel Agency infringed the copyright of computer software of Yunnan Tourism Information Network Co., Ltd., and Haitang Travel Agency immediately stopped the infringement, compensated the economic loss of RMB 1611, and made an apology.

after trial, the court held that according to the relevant provisions of the computer software protection regulations, the defendant copied a large number of HTML source codes of the "scenic spots" and "national culture" columns of the plaintiff's Yunyou website without the plaintiff's permission, which constituted an infringement on the plaintiff's computer and should bear corresponding civil liabilities according to law. Regarding the defendant's defense that he should have the right to use the public resources after paying the relevant tourism promotion fees according to government regulations, the court held that since the plaintiff claimed that the plaintiff's software program was illegally downloaded and used when the defendant's website was established, the problem to be solved in this case was to determine whether the defendant infringed the plaintiff's computer copyright, which had nothing to do with the defendant's claim that he had the right to use the public resources, because the "public resources" did not include relevant computers. Therefore, this defense reason is not accepted by the court. Regarding the plaintiff's request for compensation for economic losses, the court will decide the amount of compensation according to the proportion of the plaintiff's HTML source code copied by the defendant, the use situation, the function of this part of the source code and other plot factors. Therefore, the court made a first-instance judgment, and Kunming Haitang Travel Agency immediately stopped the infringement of the computer software copyright of Yunnan Tourism Information Network Co., Ltd., compensated Yunyou.com for its economic loss of 1611 yuan, and apologized in writing.

3. Summary of the cause of action:

On March 24th, 2111, Qingdao NetStar Electronic Commerce Co., Ltd. (hereinafter referred to as NetStar Company) signed a Website Construction Contract with Qingdao Branch of Zhongyi Famous Brand Products Import and Export Company, stipulating that NetStar Company would design the website for Zhongyi Famous Brand. Qingdao Yingwang Information Technology Co., Ltd. (hereinafter referred to as Yingwang Company) signed contracts with Qingdao Bailong Daya Green Plastic Steel Door and Window Profile Co., Ltd., private Qingdao Development Zone Sanjia Computer Training Course and Qingdao High-tech Industrial Park Zhiheng Industry and Trade Co., Ltd. on October 1, 2198, February 5 and October 8, 2199, respectively, stipulating that the company would make web pages for the above units, and the copyright belongs to Yingwang Company. From February to April, 2111, Yingwang Company designed and manufactured Shandong Electromechanical Network for Qingdao Kangpaite Electromechanical Engineering Co., Ltd.. Netstar Company believes that the Internet Company infringed the copyright of its web pages in the above-mentioned web page design process and filed a lawsuit.

the facts and evidence of the first-instance case:

the facts confirmed by the court of first instance are:

Netstar Company was established on May 9, 2119 and registered its domain name on June 1, 2119. On March 24th, 2111, the company signed a Website Construction Contract with Qingdao Branch of Zhongyi Famous Brand Products Import and Export Corporation (hereinafter referred to as Zhongyi Famous Brand), stipulating that Netstar Company will design the website for Zhongyi Famous Brand. The design fee is: the registered domain name includes international top-level domain name (611 yuan for the first two years), the virtual host is 1,511 yuan per year, the IP parsing fee is 411 yuan, the HTML structure page is 811 yuan, and the English homepage is 11,111 yuan (based on the actual situation) After the signing of the contract, except for the FLASH on the home page, the rest of the source programs were generated from March 9, 2111 to May 5, 2111. The actual payment of Zhongyi famous brand to NetStar Company is RMB 27,251.

internet company was established on June 25th, 1998, and registered the code of domain name/on August 21th, 1998. The reason for the appearance of this code is that the English network company used teleport software to download the website of Netstar Company as a reference when making the website of Shandong Electromechanical Network. Netstar Company therefore spent 1,111 yuan on evidence preservation.

Comparing the homepage of Zhongyi Famous Brand Website made by Netstar Company with the homepage of homepage made by British Network Company for Bailong Company, Sanjia Computer Company and Zhiheng Company, there are the following similarities: (1) There is a wide horizontal bar at the top of the page, and a picture at the far right; (2) The rightmost part of the page in the longitudinal direction is the information item listed item by item in the longitudinal direction, and each item is connected with the picture in (1) through lines; (3) The bottom of the page is an arc-shaped thick bar.

Compared with the homepage of Shandong Electromechanical Network, which was made by NetStar Company for Zhongyi Famous Brand, there are the following similarities: (1) The leftmost icon on the top of the page, the enterprise name with a wide yellow bar as the background on the right side and a picture on the rightmost side; (2) On the rightmost side of the page are information items listed item by item vertically, and each item is connected with the picture in (1) through lines; (3) The bottom of the page is a light blue arc thick horizontal bar, and the center of the page is an arrow decorated by an artist (with different forms). Click it to turn the page upwards, and a thin horizontal bar fills the blank background under the thick horizontal bar. Except for the arrows, the above three points are basically similar to the web pages mentioned in the previous paragraph. However, the web page making software used by Netstar Company to make famous Chinese art web pages is different from the "Microsoft FrontPage 4.1" web page making software used by British Network Company to make Shandong Electromechanical Network, and the source code is basically different.

The court of first instance held that the essence of the dispute lies in whether Netstar Company or Internet Company enjoys the copyright of similar webpages; Because the information and patterns displayed in the two websites are different, this case only tries the copyright ownership of the layout design of the webpage.

The web pages of Shandong Electromechanical Network made by Yingwang Company and those made for Bailong Company, Sanjia Computer and Zhiheng Company are intuitively similar to those made by Netstar Company. The web pages of Zhongyi Famous Website were designed from March 9, 2111 to May 5, 2111, while the web pages of Bailong Company, Sanjia Computer and Zhiheng Company were designed from the end of 1998 to October 1999.

The court of first instance ruled:

The webpage that people intuitively feel is a visual or acoustic effect displayed by hardware devices such as computer screens, and its origin is a computer program or audio-visual image that can generate this effect. The web pages are similar in layout, but the corresponding computer programs are not necessarily similar. The Internet Company failed to prove that Netstar copied its source program, and the fact that the layout of a single web page is similar is not enough to prove that Netstar has infringed copyright.

The court of first instance held that the Internet Company used teleport tool software to download the web page source program compiled by NetStar Company as a reference in the process of making Shandong Electromechanical Network, but the time of making the web pages of both parties overlapped, because the Internet Company completed the production of Shandong Electromechanical Network (April 2111) in general earlier than NetStar Company completed the production of Zhongyi famous brand website (May 2111), so according to logical analysis, It is impossible for British Net Company to download all the source programs of the web pages of China Art Famous Brand Website, but it may download some of the source programs of the web pages of China Art Famous Brand Website, or it may download the source programs of the web pages compiled by Netstar Company before. Because Netstar Company did not provide evidence to prove the specific contents of some source programs downloaded by British Network Company and the downloaded contents were converted by British Network Company with other development tools and software and then used in the design of Shandong Electromechanical Network Web page. Therefore, the court of first instance held that. At present, web design enterprises use a large number of visual web development tools, software template, etc., which they do not enjoy copyright to design web pages. Web design enterprises only enjoy copyright to some achievements (source programs) that have been creatively written and edited in the process of making web pages. Netstar did not clearly explain to the court of first instance the specific source code of its copyright due to its original intellectual activities, so the court of first instance could not confirm the specific content of the copyright enjoyed by Netstar. In view of the different source codes of web pages compiled by Shandong Electromechanical Network and Zhongyi Famous Brand Network, the court of first instance can't conclude that the two source programs are substantially similar in the sense of copyright law by comparison. Netstar Company presumed that British Netstar Company infringed on the existing evidence, which lacked factual basis.

To sum up, the court of first instance held that there was no factual basis for the lawsuit and counterclaim between Netstar Company and Internet Company concerning the infringement of web page copyright, and the corresponding claims should not be supported; British Net Company believes that Netstar Company's infringement of its goodwill right is not within the scope of this case and should file a separate lawsuit. In accordance with Article 94 of the General Principles of the People's Republic of China and the Civil Law of the People's Republic of China, and Article 2, paragraph 1 and Article 3 of the Copyright Law of the People's Republic of China (before revision), the court of first instance made the following judgments: 1. Reject the lawsuit filed by Netstar against the Internet company. 2. Reject the counterclaim claim of British Net Company against Netstar Company. The acceptance fee of this lawsuit is RMB 691.11 Yuan, which shall be borne by Netstar Company. The acceptance fee for counterclaims is RMB 2,491.11 Yuan, which shall be borne by the British Network Company.

Argument in the second instance:

Netstar Company appealed that, first, the court of first instance found that Netstar Company applied teleport tool software to download the web page source program compiled by Netstar Company as a reference for making the web page of Shandong Electromechanical Network, but did not find it plagiarism, which violated the scientific procedure of web page making. The Internet Company uses teleport to capture all the pages produced by Netstar Company, and then makes its own web page by slightly modifying some text contents and pictures, but the absolute path that the computer program automatically forms a hyperlink points to the website of Netstar Company. The notarial certificate of Qingdao No.2 Notary Office notarized this matter. After the appellant reported in the newspaper that the page was infringed, Qingdao Yingwang Information Technology Co., Ltd. immediately deleted the words "netstars.com.cn" from the source file of the homepage of electromechanical network, but the infringement fact of Qingdao Yingwang Information Technology Co., Ltd. has been established. If the source program has no influence on the production of web pages, why should Qingdao Yingwang Information Technology Co., Ltd. grab the appellant's source program? Qingdao Yingwang Information Technology Co., Ltd. obviously copied the appellant's page design. Second, the court of first instance presumed that the appellant had made reference to the web page layout of Bailong Company, Sanjia Computer and Zhiheng Company when making famous Chinese art brands. Qingdao Yingwang Information Technology Co., Ltd. submitted a webpage that had never been published on the Internet to the court, and the court found that its authenticity was wrong. The copyright of web pages must be displayed on the internet to be protected by law. The appellant requested the court to cancel the judgment of first instance, and ruled that Qingdao Yingwang Information Technology Co., Ltd. had the infringement fact, and ordered Qingdao Yingwang Information Technology Co., Ltd. to stop the infringement, make an apology and compensate the economic losses, and bear the legal fees, notary fees and other expenses.

Qingdao Yingwang Information Technology Co., Ltd. replied that the webpages designed by Yingwang Company for Bailong Company, Sanjia Computer and Zhiheng Company were works protected by copyright law, and the appellant, as the designer, enjoyed the copyright. The copyright of this type of webpage should belong to Qingdao Yingwang Information Technology Co., Ltd.. The homepage of the famous Chinese art website designed by the appellant is structurally similar to the copyrighted webpage designed by Qingdao Yingwang Information Technology Co., Ltd., but the appellant can't prove that his works were conceived and created independently, so it should be considered that the appellant has infringed the copyright of Qingdao Yingwang Information Technology Co., Ltd. The judgment of the first instance ignored the fact that the Shandong electromechanical network made by British Network Company was designed and made with reference to the webpage of Zhiheng Company, which owns all its copyrights. The British Network Company used teleport to download Zhiheng Company as a reference when making the Shandong electromechanical network. Due to the staff error of the British Network Company, the revision of moftec.gov.cn in tppabs= was mistakenly changed to netstars.com.cn (it should be yingnet.com). Qingdao Yingwang Information Technology Co., Ltd. designed and produced Shandong Electromechanical Network entirely by itself, and the court of first instance lacked factual and logical basis for its determination and analysis.

The court of second instance ruled:

Web pages are stored in digital form in computer storage devices, and can be copied in various forms. If designers combine and arrange various elements of Web pages in the process of making Web pages, making creative intellectual labor and forming new forms of works, then the Web pages as digital works should be protected by China's copyright law.

generally speaking, when there is no agreement on the ownership of the copyright of a webpage or the copyright belongs to the designer, the webpage designer, as the author of the assembly work, enjoys the copyright of the webpage as a whole. However, China's copyright law does not protect the layout design of web pages alone, and the copyright owner of web pages does not enjoy the adjacent rights of this copyright. Therefore, due to the design of the famous Chinese art brand network designed by Netstar Company and the design of British Network Company,