On February 24, 2024, the People’s Court Case Database was updated with a copyright infringement case involving the dissemination of pirated games on a gaming platform, indexed under case number 2024-13-2-158-004.
The key highlight of this case lies in how to determine when a network user’s copyright infringement should be attributed to the conduct of a network platform operator.
Case Overview
After Plaintiff Company A obtained exclusive copyright ownership of Muse Dash, it discovered that on the platform “Huluxia 3rd Floor” operated by Defendant Company B, a user under the username “[CTG] Feng Gege” had shared a download link to a cracked version of the game via Baidu Netdisk.
Based on factors such as the uploader’s certification badge, posting records that only platform administrators were able to publish, and status indicators, the plaintiff argued that the uploader was engaged in platform management work for the defendant, and that the uploader’s conduct should therefore be deemed the conduct of the defendant itself. Accordingly, the defendant should bear direct infringement liability.
The defendant argued in response that the post was published after the user had left the company, that it constituted the user’s personal conduct, and that the defendant had already fulfilled its reasonable duty of care. Therefore, it contended that it neither constituted infringement nor should bear legal liability.
Court’s Opinion
In its effective judgment, the court held that the core issue in dispute was whether the posting behavior of the account user could be regarded as the conduct of the defendant network platform operator, Guangzhou XX Network Technology Co., Ltd.
The court’s analysis was as follows:
The “Huluxia 3rd Floor” platform operated by the defendant was not limited to game-related discussions, but also provided game download services and generated profits therefrom. Its business scope had therefore gone far beyond that of a mere information storage service provider.
Based on the uploader’s honorary titles, posting content, and posting timeline, the court found that the user maintained a close relationship with the defendant, and had long and continuously performed platform management duties in the capacity of a platform administrator. The infringing conduct at issue was also carried out in such managerial capacity.
The defendant acknowledged that the uploader had previously been its employee, which further substantiated the existence of a close management and control relationship between the user and the defendant. The user had, under the defendant’s authorization, long and continuously engaged in platform management work as a platform administrator. Moreover, before and after the alleged resignation date, there were no material changes in the user’s permissions or the nature of the posts. The posting behavior was continuous and within the defendant’s control. Accordingly, the uploader’s posting conduct should be attributed to the defendant company.
The defendant’s appellate argument that the uploader had already resigned when publishing the infringing content and therefore acted in a personal capacity confused the distinction between the existence of a labor relationship and the attribution of information network dissemination infringement liability. Whether a labor relationship existed did not affect the determination of the nature of the conduct.
Judgment Result
On July 23, 2021, the Shanghai Intellectual Property Court rendered civil judgment (2019) Hu 73 Zhi Min Chu No. 561, ordering Defendant Company B to compensate Plaintiff Company A RMB 350,000 in economic losses and RMB 55,000 in reasonable enforcement costs. Company B appealed the decision.
On September 25, 2023, the Supreme People’s Court rendered civil judgment (2021) Zui Gao Fa Zhi Min Zhong No. 2365, rejecting the appeal and upholding the original judgment.
Litigation Takeaways
When third-party gaming platforms disseminate pirated games for profit, they often attempt to isolate infringement risks by uploading games through false or disguised user identities. Accordingly, when game companies pursue liability in similar situations, the following key points warrant particular attention:
1. Timely Preservation of Evidence of the Infringing Game
(1) Use electronic evidence preservation methods to fully capture screenshots or screen recordings of the cracked game download links, download pages, and installation package information (such as the removal of legitimate payment verification), while recording the posting time and modification time.
(2) Download the infringing game installation package through notarization procedures, record operation videos, and demonstrate evidence showing that the infringing version bypasses legitimate payment verification while retaining full functionality. Where necessary, code comparison appraisals may also be conducted to prove the existence of infringement. During such appraisals, special attention should be paid to preserving evidence of the installation package extraction process and verifying checksum values to prevent appraisal opinions from being invalidated due to defects in the inspection samples.
2. Proving That the Platform Failed to Fulfill Its Reasonable Duty of Care
The “safe harbor” principle is a commonly invoked defense by network service platforms. However, where a platform fails to take necessary measures to prevent infringement and does not fulfill its reasonable duty of care, it may still bear infringement liability.
(1) The presence of obvious infringing content on the platform:
If a game company can prove through evidence such as app download rankings and media reviews that the copyrighted game enjoys high popularity, the platform should reasonably be aware of its existence. If the platform nevertheless assists or allows the infringing game to be listed and disseminated, it should bear liability. For example, in case (2020) Hu 0104 Min Chu No. 4625, the copyrighted game Dungeon & Fighter had high notoriety. As a professional game website operator, the defendant should have known the relevant circumstances of the copyrighted game, yet still provided downloads and operations of the infringing game on its website and used relevant rights identifiers for promotion, thereby constituting joint infringement with the infringing game developer.
(2) Failure to establish a reasonable review mechanism:
Where a platform fails to establish a green channel for reporting the uploading of pirated games, fails to timely ban accounts repeatedly complained against, or fails to block IP addresses repeatedly registering new accounts to upload pirated games, it may be deemed to have failed to fulfill its reasonable duty of care. In case (2017) Su 05 Min Chu No. 331, the court held that after receiving repeated infringement notices from copyright holders, the defendant (a short-video platform operator) was still unable to genuinely prevent infringing videos from reappearing. Given the obvious nature of the infringement, the defendant should have borne a higher duty of care but failed to do so, and was therefore found to have assisted infringement.
3. Proving the Platform’s Intentional Infringement
(1) Platform promotional conduct:
Evidence may include platform feature descriptions (e.g., “a hub for cracked games”), promotional slogans (such as “play games for free” or “cracked game resources”), homepage recommendations or pinned posts for cracked game links, and the creation of dedicated cracked game sections or tags. For example, in case (2020) Hu 73 Zhi Min Chu No. 261, the defendant company had specifically set up sections such as “Premium Recommendations” and “Popular Recommendations.” Moreover, when the defendant inquired with customer service about how users could upload games, customer service responded that “uploading games is not supported,” thereby demonstrating that the defendant was not merely a network service provider but a direct infringer.
(2) Platform profit models:
By adducing evidence of advertising revenue and paid membership features (such as “receive XX cracked games upon becoming a member” or “get N cracked games with an annual membership”), it may be shown that the platform actively participated in infringing conduct with profit motives.
(3) Relationship between the platform and users:
By examining user identity authentication, honor titles, special permissions, and posting duration on the platform, it may be proven that the uploader maintains a close relationship with the platform, such as being a platform administrator or an employee of the operating company. On this basis, it may be argued that the user’s conduct should be deemed the conduct of the platform itself, and that the platform should bear infringement liability.
