How can game companies protect their rights against pirated game platforms?

PART 1

Case Summary

The online game “Come at Me” developed by Liuku Company completed its computer software copyright registration on February 9, 2018. The game enjoys high acclaim and commercial value, frequently ranking at the top of charts and gaining immense popularity among players. Zhaokong Company operates the “Eight Gates Divine Tool” app. Liuku discovered that Zhaokong, without authorization, provided download methods for a cracked version of “Come Fight Me” on its operated “Eight Gates Divine Artifact” app, enabling users to download, install, and experience the game. Consequently, Liuchu Company filed a lawsuit with the court of first instance, requesting the court to order Zhaokong Company to immediately cease infringing upon the computer software copyright, publish an apology statement in a prominent position on relevant platforms to eliminate the impact, and compensate for economic losses (including reasonable expenses incurred in protecting rights) amounting to 50,000 yuan. (Previously, five similar cases involving the same subject matter had each been awarded damages ranging from 20,000 to 30,000 yuan.)

PART 2

Court's Viewpoint and Ruling

(I) Rationale for the Judgment

1. Regarding the Type of Work Liqiu Company Sought to Protect

The court of first instance (Changsha Intermediate People's Court, hereinafter the same) held that Liqiu Company's insistence on treating online games as an independent work category and asserting copyright protection did not comply with legal provisions.

The appellate court (Supreme People's Court, hereinafter the same) held that Liqiu Company submitted relevant certificates proving its status as the copyright holder, indicating it sued as the software copyright owner. Although it sought protection for the entire online game work during the first-instance trial and in its appeal brief, it failed to amend Claim 1 before the conclusion of first-instance arguments to specify the relevant original expressions. In the second-instance proceedings, while maintaining the same claim, Six Fun Company acknowledged that protection primarily rests on computer software under current circumstances. Therefore, the type of work Six Fun Company sought to protect should be classified as computer software.

2. Regarding whether Kongzhu Company infringed Liqiu Company's copyright

The first-instance court held that since Liqiu Company could have submitted the source code of the rights software upon court request but refused to do so, its evidentiary conduct violated civil litigation principles and should bear adverse consequences. Therefore, its claim was not supported.

The appellate court held that the user interface, character designs, and plotlines constitute the external expression of the game software and represent the primary purpose of its programming design, embodied through computer software source code. In the absence of source code comparison, whether game software is identical or substantially similar can be clearly and intuitively determined through its external expressions such as user interface, character designs, and plotlines. In this case, the allegedly infringing game and the rights holder's game are substantially identical in these aspects. Combined with the identical pirated version label, stated author, synopsis, and display of Liqiu Company's trademark, it is presumed that the two constitute substantial similarity. Zhaokong Company's actions infringed upon Liqiu Company's information network dissemination rights.

(II) Judgment Outcome

1. Revoke the first-instance judgment.

2. Within ten days of the judgment taking effect, Control Company shall compensate Liuchu Company for economic losses (including reasonable expenses incurred in enforcing rights) amounting to RMB 10,000.

3. The case acceptance fees for both the first and second instances, totaling RMB 1,050, shall be borne by Liuchu Company (RMB 500) and Control Company (RMB 550) respectively.

PART 3

Sharing and Lessons from Litigation Experience

(I) Clear Definition of Work Protection Categories

When filing lawsuits, game companies should accurately assess and clearly specify the type of work seeking protection. This prevents adverse effects on rights enforcement during litigation due to unclear or legally non-compliant work classifications.

Taking this case as an example, although Liqiu Company's argument that the entire game work should be protected as an independent work type had previously been recognized by some courts (e.g., Guangzhou Internet Court Case No. (2021) Yue 0192 Min Chu 7434), and this view holds positive significance for the comprehensive protection of game rules and game graphics, this argument remains highly contentious, and its widespread acceptance and application remain uncertain.

Therefore, when multiple potential protection targets are involved, game companies should thoroughly evaluate the feasibility and advantages of each protection method. They should select the most advantageous protection path based on the specific circumstances of the case and clearly and accurately articulate it in their pleadings and statements. This ensures the court can accurately understand and adjudicate within that scope.

When seeking protection for the game work as a whole, two primary approaches for classifying the work type are currently available: audiovisual works or computer software. Each has its pros and cons. The former approach fails to protect the source code, while the latter involves high costs for source code authentication and carries a high risk of evidentiary flaws. In addressing infringement cases involving pirated games, the appellate court's ruling in this case ingeniously resolves the pain points associated with the computer software protection route for game companies. Specifically:

1. Reduced enforcement costs and evidence defect risks associated with computer software copyright

In past cases, software protection often required expert opinions comparing source or object code. This necessitated offline notarization to extract the infringing game installation package and commissioning qualified institutions for complex, costly code comparison—resulting in high enforcement costs. In contrast, evidence collection methods like capturing screenshots of infringing gameplay or recording dynamic footage during gameplay operation incur relatively lower costs.

Regarding evidence defect risks, the fixation and comparison of software source code evidence involve numerous uncertainties stemming from technical complexity. For instance, defects in the notarization or appraisal procedures/content of installation packages may compromise evidence validity. In contrast, acquiring and preserving game screen captures is relatively straightforward and less prone to such flaws, providing rights holders with a more reliable and stable evidentiary foundation to mitigate the risk of unfavorable burden of proof.

2. Addressing the Core Infringement of Pirated Games

While classifying game works as audiovisual works through gameplay comparison allows asserting copyright infringement by pirated versions, this protection approach actually sidesteps the core infringing acts of pirated games. From the perspective of infringement methods, pirated games typically involve only minor adjustments to portions of the code. Without substantially altering the original game's structure, they unlock specific game functions and numerical values—such as removing paid features, arbitrarily adjusting character attributes, or removing character attribute caps. Thus, substantial similarity in game visuals is merely an external manifestation of code infringement; the core infringement lies in the substantial similarity of the game code itself.

In this case, the Supreme Court inferred substantial similarity based on the operational interfaces, character designs, and storylines of both games. In the absence of counterevidence, it determined that the code of the two games constituted substantial similarity with a high degree of probability. This ultimately grounded the finding of the defendant's infringement on game code infringement, effectively remedying the plaintiff's core rights. This approach to rights protection holds significant implications for future software copyright infringement disputes, particularly in cases where evidence of code similarity is difficult to establish.

(II) Determining Liability for Online Game Distribution Platforms

In such cases, online game distribution platforms (hereinafter referred to as “platforms”) often invoke the “safe harbor” principle. They claim exemption from liability by asserting that pirated games were uploaded by users, that they act as neutral technical service providers, that they had no prior knowledge of infringement, promptly removed infringing games upon receiving notice, and did not profit from the infringing games.

Accordingly, based on the “Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Infringement of Information Network Transmission Rights” and other relevant regulations, game companies may consider rebutting the platform's claims and demanding liability through the following approaches:

1. The platform's direct involvement in infringing activities

(1) Fabricating users to directly commit infringement: Some online service platforms may create fictitious users to upload infringing content to mitigate liability risks. Therefore, evidence should be gathered and cross-examined from the perspective that the online game distribution platform itself is the perpetrator of the infringement.

For example, demand the platform provide uploader information and employ technical means to verify IP address authenticity and account registration details. Contact the uploader directly if necessary. If the platform cannot provide uploader information or if the provided information shows signs of association with the platform (e.g., matching IP addresses), the platform remains liable for infringement.

(2) Indirect infringement through incitement or encouragement: If a platform's primary business revolves around pirated games or other infringing content, or if it attracts users through such content—such as by establishing dedicated sections for pirated games or promoting popular infringing titles—it fundamentally deviates from the role of a neutral technical service provider. In such cases, the platform demonstrates clear subjective intent to infringe and objectively facilitates the dissemination of infringing games. Therefore, the “safe harbor” principle cannot exempt it from liability, and it shall bear infringement liability.

2. Failure to Exercise Reasonable Diligence

(1) Lack of Content Review Mechanisms: Platforms must establish fundamental content review systems, including but not limited to: - Establishing explicit platform rules prohibiting the upload of infringing content - Implementing technical screening for infringing keywords - Conducting regular manual inspections - Establishing reasonable reporting and complaint channels Failure to implement these measures, or ineffective implementation (e.g., ignoring infringement reports), resulting in the proliferation of infringing games on the platform demonstrates a breach of reasonable duty of care, thereby incurring liability for infringement.

For example, in Case No. (2023) Hu Min Shen 1372, the Shanghai High Court held that after multiple infringement notices from Tencent, the Lychee App failed to remove infringing audio content related to The Three-Body Problem, constituting contributory infringement by the defendant company.

(2) Failure to prevent repeated infringements: If a platform fails to effectively prevent the same or similar infringing games from being relisted after handling an infringement notice, it shall bear liability for repeated infringements.

(3) Platform's “should have known” of infringing acts: If a game company can prove through evidence such as app download rankings and media reviews that the protected game enjoys high recognition, and the platform should have been aware of its existence yet still aided or acquiesced in the listing and dissemination of infringing games, it shall bear liability for infringement.

For example, in Case No. (2020) Hu 0104 Min Chu 4625, the rightful game “Dungeon and Heroes” enjoyed high recognition. As a professional game website operator, Kai Company should have been aware of the rightful game's status. Nevertheless, it provided downloads and operation of the allegedly infringing game on its platform and promoted it using related rights symbols, jointly infringing with the developer of the allegedly infringing game.

3. Platforms Deriving Direct Profit from Infringing Games

If a platform derives direct profit from a game (e.g., through revenue sharing with uploaders, advertising revenue, or paid website membership), it must exercise heightened diligence in verifying the game's compliance. Failure to do so subjects the platform to liability for the publication and dissemination of infringing games. For instance, if a platform merely provides a channel for users to upload games but fails to rigorously verify the authenticity and completeness of copyright documentation for uploaded games, or neglects to review the uploader's business license, authorization letters, and other supporting documents, these circumstances may be deemed as the platform failing to exercise a heightened duty of care.