Whether a network user’s act of offering content could be deemed as the act of the online platform operator can be analyzed based on the nature of the online platform, the user’s identity and affiliation with the platform, and the accused infringement acts and contents. If a managerial or control relationship exists between the online platform and the user, and if the user, taking advantage of his identity as a manager, constantly and steadily posts on the online platform, his infringement acts can be deemed as being conducted by the online platform, and the employment status should not affect the determination of the nature of such acts.
A Company filed a lawsuit claiming that, through legal authorization, it acquired the exclusive rights to the disputed game app, including reproduction rights, distribution rights, and information network dissemination rights, and had the sole entitlement to enforce such rights in its name. Online User X shared the disputed game app on the online platform operated by Guangzhou B Company without payment verification via Baidu Netdisk. On the online platform, X held honorary titles such as “Retired Person” and “Blue V Officially Verified” badges, with his location listed as the platform's headquarters. X also extensively posted on the Announcement Board mostly including activities like recruiting online managing personnel, badge exchanges, announcing outstanding employees, announcing server upgrades, and other managerial content under the guise of being a manager of Guangzhou B Company. In addition, posting on the Announcement Board requires special access privileges. A Company claimed that Guangzhou B Company infringed upon its copyright on the disputed game app on the ground that X managed the platform in Guangzhou B Company, and X’s actions should be attributed to Guangzhou B Company’s. Guangzhou B Company shall bear the liability for the infringement.
Guangzhou B Company rebutted that the accused infringing post was shared by X after he had resigned from Guangzhou B Company, so his acts should be considered individual. Guangzhou B Company also argued that it solely provides online services such as information storage space and has fulfilled duty of reasonable attention, so it does not constitute infringement and should not be held accountable.
On July 23, 2021, the first-instance court made a civil judgment ordering Guangzhou B Company to compensate A Company’s for its financial losses and reasonable enforcement expenses. Guangzhou B Company was dissatisfied and appealed. On September 25, 2023, the Supreme People’s Court made a final civil judgment to refuse the appeal and uphold the original judgment.
The effective judgment deemed the substantive dispute in this case was whether X’s post could be attributed to Guangzhou B Company, the platform operator. This assessment can be conducted based on the nature of the online platform, the poster’s identity and affiliation with the platform, and the accused infringement acts and contents. The platform of Guangzhou B Company is not only for communications on games, but also provides and generates profits from game downloading services, s indicating a business scope beyond an information storage space. Judging by X’s honorary titles, posted contents, and timing, he had a significant connection with Guangzhou B Company, and he conducted the accused infringement as a managing personnel in Guangzhou B Company. Guangzhou B Company’s confirmation that X was formerly its employee further proved the close managerial and control relationship between X and Guangzhou B Company and proved that X had been constantly operating on the accused platform as managing personnel in Guangzhou B Company under Guangzhou B Company’s authorization. In addition, there was no substantial change in X’s access and the nature of his posting before and after his resignation as claimed by Guangzhou B Company. His act of posting was constant and under the control of Guangzhou B Company, so should be deemed as an act of Guangzhou B Company. Guangzhou B Company’s claims that X’s infringement acts should be deemed as his individual acts due to his resignation when he posted the disputed game reflected misunderstanding of the connection between employment status and liability determination in the case of information network transmission infringement.
(2021) Zui Gao Fa Zhi Min Zhong No. 2365
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