Supreme Court (2020)

Amicus Briefs

In support of Respondent

• Alliance of U.S. Startups & Inventors for Jobs (USIJ)
• American Conservative Union Foundation
• American Legislative Exchange Council
• Association of American Publishers
• Center for Medicine in the Public Interest
• Committee for Justice
• Computer Science Professors (Dr. Spafford et al.)
• Consumers’ Research
• Copyright Alliance
• Copyright Thought Leaders (Tepp et al.)
• Digital Justice Foundation
• Dolby
• Former Copyright Office Register Ralph Oman
• Former Legislators
• Hudson Institute
• Interdisciplinary Research Team on Programmer Creativity
• Internet Accountability Project
• IP Professors (Aistars et al.)
• Mathworks
• Motion Picture Association
• News Media Alliance
• Professor and Former CONTU Member Arthur Miller
• Professors of Journalism and Media Law (Dr. Knobel. et. al.)
• Recording Artists (Helienne Lindvall, et al.)
• Recording Industry Association of America / National Music Publishers Association
• SAS
• Sun Executive Scott McNealy
• Synopsys
• Tech Executives (Joe Tucci and Paul Dacier)
• Ten Creators’ Rights Organizations
• The United States
• US Telecom

In support of Neither Party

• American Intellectual Property Law Association

In support of Petitioner

• Civ Pro, IP & Legal History Professors
• Glynn Lunney
• Michael Risch
• Center for Democracy and Technology, et al.
• Professors Peter S. Menell, et al.
• Copyright Scholars
• Rimini Street, Inc. 
• The Robert Rauschenberg Foundation
• Computer & Communications Industry Association and Internet Association
• Developers Alliance
• Microsoft Corporation
• Auto Care Association and Static Control Components, Inc.
• Small, Medium, and Open Source Technology Organizations
• Empirical Legal Researchers
• Electronic Frontier Foundation
• Software Innovators, Startups, and Investors
• Seventy Two Intellectual Property Scholars
• Eighty Three Computer Scientists
• R Street Institute and Public Knowledge
• Engine Advocacy
• Python Software Foundation and Tidelift
• American Antitrust Institute
• Retail Litigation Center, Inc.
• The American Library Association, The Association Of Research Libraries, The Association Of College And Research Libraries, And The Software Preservation Network
• International Business Machines Corp. and Red Hat, Inc.
• Software and System Developers and Engineers for United States Government Agencies
• Software Freedom Law Center

Cert Petition (2019)

Amicus Briefs

In support of Petitioner

• Developers Alliance
• Eight Intellectual Property Scholars
• Microsoft
• R Street Institute and Public Knowledge
• Electronic Frontier Foundation
• Professors Peter Menell and David Nimmer
• Sixty Five Intellectual Property Scholars
• CCIA
• Seventy Eight Computer Scientists
• American Antitrust Institute
• Engine Advocacy
• Python Software Foundation and Tidelift
• Red Hat
• Software Innovators, Startups, and Investors
• Mozilla, et al

Federal Circuit (2018)

Amicus Briefs

In Support of Oracle

• BSA | The Software Alliance (Feb. 17, 2017)
• Competitive Carriers Association (Feb. 17, 2017)
• Computer Scientist Professors (Feb. 17, 2017)
• Copyright Alliance (Feb. 17, 2017)
• IP Scholars (Feb. 17, 2017)
• McNealy and Sutphin (Feb. 17, 2017)
• MPAA, IFTA, and SAG-AFTRA (Feb. 17, 2017)
• NY IP Law Association (Feb. 17, 2017)
• PACA, DMLA, GAG, NPPA, NANPA, ASMP, APA, and PPA (Feb. 17, 2017)
• Ralph Oman (Feb. 17, 2017)
• RIAA and AAP (Feb. 17, 2017)

In Support of Google

• American Antitrust Institute (May 30, 2017)
• Mozilla Corp. (May 30, 2017)
• Electronic Frontier Foundation and Public Knowledge (May 30, 2017)
• Microsoft Corp., Red Hat, Inc., and Hewlett Packard Enterprise Co. (May 30, 2017)
• IP Professors (May 30, 2017)
• Computer Scientists (May 30, 2017)
• Engine Advocacy, The App Developers Alliance, and Github Inc. (May 30, 2017)
• Computer & Communications Industry Association (May 26, 2017)

Federal Circuit (2014)

Remand

Watch Videos at Here

[Translation] Notice

As a respond to the spirit of “Welcome Asian Games, Build Homonization”, according to the admininstration & Service center of Rental Estate at Da Shi Street, all the non-permanent residencts living in the Da Shi Street should refrain from dialing “110” [Chinese 911 number]. Who dial once will be fined RMB500 [USD$75], twice fine RMB1000 [USD$150], so on so forth. If you need to call the police, please call:

Da Shi Police station: 020-8478-3027

Da Shi Public Security Force: 020-8478-5533 or

Da Shan Police Station General: 020-3993-1632

================

I know what happened. There must be a stupid internal standard during the Asian Games in Guang Zhou – The police stations must assure the public security during the Asian Games, and one of the standards of examining their working achievement must be the times that the “110” Emergency Center recieved the calls from the regions under the police stations’ administration. (The 110 Center is set up in the headquater of the Guangzhou police Bureau).

Da Shi Street must be a region where a lot of non-permanent residents are living – most of them are low class employees — To avoid lagging behind other police stations, and then blamed by the superior officer, the Da Shi Police Station invented such notice: “hey there, if there is any emergency, you should not call 110, but call our local offices.”

You always get surprises at a place where the power comes from the superior but not  society.

It is no doubt a good news for jailbreakers, the unauthorized App developers, as well as iPhone buyers. Now you can strut up to the black corner of the computer arcade, looking straight inside the eyes of the guy who knows how to satisfy your desire (of anything that Jobs don’t want you do, such as watching flash video), and speak laudly: “break it, please.”

“Wait, wait! It’s an iPod … OK … if you like to call it iTouch, then it is an iTouch… It’s not an iPhone, I mean … not a telephone handset.”

“What?”

Let’s stop the drama and go back to the law:

At least from the literal meaning of the newly annouced exemption, iTouch owners may be excluded from the benificiaries. Here is the fulltext of the exemption:

… Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) until the conclusion of the next rulemaking.

…

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

…

Is an iTouch a “wireless telephone handset”? I don’t know. At least Apple, even before such exemption promulgated, has already said it isn’t a telephone – it is a great iPod, a pocket computer and a game player, but not a telephone… because only iPhone will be a telephone. (How about iPad 3G? Too big to be a “handset”?)

While in practice, if you do own an iTouch, you must have tried to make it being a telephone – The easiest way is to install a Skype. That dose not need jailbreak.

Recently, there is a more exciting way to turn iTouch to a telephone, a real GSM mobile phone. After jailbreaking, you may turn your iTouch to be a real telephone in the near future by wearing this: Apple Peel 520.

Google’s ICP license renewed. See the captured today’s Google.cn web page below (left), and compare it with the page in last week (right).

Google.cn on 9 July 2010:

Google.cn on 4 July 2010:

Exactly as what I predicted few days ago, Google is trying to make Google.cn being a non-search engine website. It now places “Music”, “Translation” and “Shopping” at the web page. These are what Google wishes to keep on running in China. While the search engine service of Google.cn is replaced by a link to google.com.hk. Legally speaking, Google.cn is not providing search engine service currently. It is merely a link to another website. Just like the links added in any of our own web posts.

Interestingly, please pay attention to those minor changes. It seems Google’s lawyers are demonstrating their legal skills. For example, in the 4 July version, it says “we have moved to (我们已经移至) google.com.hk”, while in current page, “we have moved to” has been moved. Why? I assume the reason might be: The sentence “WE have moved to” acknowledged that the one who runs “google.com.hk” is identically the same one who runs “google.cn”. In that circumstance, Google.cn would still be critisized by Chinee authority on providing searching results including “illegal” materials. Without such sentence, when it is accused by the government, Google China may say that it is an independent legal entity who is distinctive from the operator of google.com.hk.

Besides the censorship topic. Let’s discuss something about intellectual property law (this might be more interesting): Is there any difference between providing a link to a search engine and providing a search engine service per se?

Yes, of course.

When you place a link to a web page. You will not be a service provider, therefore you will not be liable for the copyright/trademark infringement even when the linked page is full of infringing materials. If a right owner wants your money, he/she at least has to send you a notice saying “hey! The web page you are linking is full of my proprietary stuff. Please move that hyperlink!” After you recieved such letter, in China, you may have to remove the link if there is really infringing contents at the web page you are linking to. However, now in the Google’s circumstance, this will no be a problem because google.cn is linking to google.com.hk, which is owned by google.cn’s parent company.

In short, by replacing search box with a hyperlink to google.com.hk, Google.cn may escape from being accused for vicarious liability, which is by far a “killing application” of the intellectual property holders in this era of the Cambrian explosion of the Internet.

Represented by Professor Charles Nesson, Joel Tenenbaum pulled one back in his P2P downloading case, in which he was sentenced $675,000 dollars statutory damages to the copyright owners.
I was sitting in the hearing when Professor Nesson presented his move of either placing a new trial or granting a remittitur. Briefly, Charlie’s argument is: 675,000 dollars is unconstitutionally high, and therefore instructing the jury that maximum amount should be a mistrial.
After five months awaiting, Judge Nancy Gertner agreed Joel’s motion of remittitur by reducing the damages Joel owes to $67,500 – one-tenth of the original one. In her ruling, she wrote:

Reducing the jury’s $675,000 award also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards. It also protects ordinary people like Joel Tenenbaum.

Still, for each song, Joel has to pay $2,250, and if my memory serves, upon what is the appropriate amount of damages, “30 Dollars”, Charlie said after the hearing.

Yes, they are different.

If a service provided by Google China, a Chinese company, were shut down by the government, the forum of questioning such shutting down should be Chinese judicial or administrative dispute resolutions. The game players thus are Google China and specific government agency who makes the decision. If Chinese law do request ISPs filterring the search result,  then Google would hardly be a winner of the that kind of dispute (even regardless the “political influences” to the cases).

If an online service provided by Google Inc. (a corporation in California), or Google.com.hk (operated by a company registered in Hong Kong) were denied to be accessed by China’s government, a new forum could be chosen by Google – WTO.

Yes, a complaint at WTO’s DSB should be filed by a government. But the industry would always be an initiative force of the international trade disputes. Furthermore, because Chinese court has not been empowered to review the legality of administrative regulations, reviewing them through an international institution can at leaste be one of the choices of challeging those regulations.

Now the question is: whether China is burdened to open search engine market to foreign companies?

China has made its sectoral commitments  on providing market access for some “telecommunications services”. Specifically, China committed to open the market for “data/online processing services”, which is the class 843 of the UN Central Product Classfication (CPC). But China did not promise to open market for “database services”, which is CPC 844.

In the 2009 version of the CPC, the “web search portal content” has been included in CPC 843. Although China’s commitments was made based on the CPC in 2001, some WTO cases (shrimp-turtle case, and Gambling case) has supported an evolutionary approach or a dynamic approach. Both of them would be good for including search engine service in China’s commitments.

The next question is: whether China’s activities constitute a violation of its commitments? That would be a much longer discussion. And I would not be able to illustrate it at the current stage. Anyway, an overall strategy is of very important for both parties. Before stepping forward, both Google and China’s government officials should pay attention to the differences between “blocked” and “shut down”, and between domestic law and international law.

Google’s SVP David Drummond announced the official reason of such change (underlines added).

“…it’s clear from conversations we have had with Chinese government officials that they find the redirect unacceptable—and that if we continue redirecting users our Internet Content Provider license will not be renewed (it’s up for renewal on June 30). Without an ICP license, we can’t operate a commercial website like Google.cn—so Google would effectively go dark in China … instead of automatically redirecting all our users, we have started taking a small percentage of them to a landing page on Google.cn that links to Google.com.hk — users can conduct web search or continue to use Google.cn services like music and text translate, which we can provide locally without filtering. This approach ensures we stay true to our commitment not to censor our results on Google.cn and gives users access to all of our services from one page… As a company we aspire to make information available to users everywhere … We are therefore hopeful that our license will be renewed on this basis so we can continue to offer our Chinese users services via Google.cn.”

Regardless the political concern of Chinese authority,  the current web page at GOOGLE.CN and the above announcement can be described as a smart lawyering thing. By this change, Google may claim that GOOGLE.CN is not using the prohibited URL forwarding technology. And because the linked page (google.com.hk) has nothing but a blank search box and some links for the “Google.cn services like music and text translate”, Google is hardly to be condemned as an “illegal” or an “unmoral” one even in the tone of Chinese offical news agencies.

I would not like to bet that Google could be blocked out of China entirely.  But who knows what will happen? If Google is really blocked on mainland China, some clues might be found through what has happened.

Firstly, Google wish to keep its “Google.cn services” at Chinese market. Since 2005, Google has launched some unique Chinese applications at Google.cn.   These services are either not available (e.g. www.google.cn/music) or unuseful (e.g. laiba, Google Book Chinese, Google Scholar Chinese etc.) for the users outside of China. Therefore, Google hope to leave them even when its search engine is blocked.

The circled things are all Chinese applications.

Second, Google wish to “offer unfiltered search in simplified Chinese”, but please be careful, Google does not say whether such unfiltered search will be available on mainland China, or at least available through Google.CN. Technically, language preference can be individually adjusted by any user in any Google account at any Google’s gTLD domain name. Therefore, Google will definitely continue to offer such service no matter China block Google.cn or not.  Or, to some extrem, Google China (which is by law an independent Chinese company) may even continue to use Google.cn as an entrence of thlse Chinese Google services, while (if not too weird) such page may not include a search engine unless you log in with your Google.com account (which is a service provided by a foreign company).  By the way, the similiar situation has actually been happening for a long time – Google.CN has never provided E-mail service.

I will discuss this later on.

Buyer: Hey, have you shipped what I bought at your taobao shop?
Seller: There is a flood hereby! Our office has been flooded! The express company is shutdown today too! My husband has been swept away. And I can not find him now!
Buyer: oh…
Seller: We get rainstorm for several days in Guangdong. It’s all messy in my shop today. Sorry for late! I am very sorry… My husband’s life is uncertain now. I will try to ship the item to you tomorrow, Okay?
Buyer: …fine, it’s fine.
Seller: I appreciate your kindness! Thank you! I do feel regret for late shipping!
Buyer: …
Seller: Many thanks! I am not sure how to make it… I am really scared…

As an observer of the Internet and society, frankly, I am a little bit exciting on the background of the story. Obviously, even in a flooding, the online business is still running. What a vivid economy!

As a Chinese guy, I am a little bit moved by the woman. Wish her and her husband, along with their business can survive the disaster out there.  The hope of the country comes actually from those kind hearts, along with the merits of free and fair trade. The law should improve and guarantee them.

On the current flood-stricken south China,  see:
http://www.reuters.com/article/idUSTRE65P11X20100626

The screen capturing of the original conversation can be seen at my Chinese post at http://www.blawgdog.com/article/BLawg/1051.htm

Here is the collection of the English abstracts for 21 Chinese entries published at BlawgDog from 25 Jan. 2010 to 20 Mar. 2010. For the English readers’ reference.

• DONG Hao, “Taxation Issues in the E-commerce”

A book Chapter in LI Zuming (ed.), E-commerce Law, Beijing: University of International Business and Economics Press (2009), 19,000 Chinese words. The excerpt edition of 11,000 Chinese words is provided in this entry at BlawgDog.
The E-commerce should not escape itself from the taxation. However, the troditional tax law and taxation policies would not cope with the new challenges including the identification of the taxpayer, the jurisdiction issues, the “new” objects of taxation, etc. This chapter firstly analyzed the impacts of the online commerce to the traditional tax law. Then it introduced the achievements either in the academia or in the legislations in various countries. China’s relevant taxation policies and the future development are discussed in the third section of this chapter. To make this book more practical,  although the structure of the chapter can be divided to the above three parts, the whole chapter always focuses on the possible dilemma as well as the solution in the context of Chinese taxation system.

• Donnie: little bit copyright knowledge

A senior Chinese Wikipedian wrote a post on his blog saying about his suggestion for the amendment of Chinese Copyright Law. The suggestions indicated three aspects of Copyright law: (1) Works made by/for the government; (2) the possibility of waiving the moral rights; (3) term of copyright protection. However, his understanding to the copyright law is not professional enough. I write this essay to illustrate the relevant knowledges and my arguments in these three concerns: (1) it is difficult to judge whether or not a work is of the governmental work. (2) some moral rights can be waived, but some others can not – not because they are “personal rigts” but because the logic essence of them (read more by clicking here); (3) the uncertainty of the death of authors is the major reason of orpan works problem.

• Donnie: search experiment to “The Internet is” in Chinese

Doc Searls searched “the Internet is” in Google and twitter and find some interesting results (at here). I tried to search “The Internet is” in Chinese (互联网是) at Google and Baidu. The result seems more interesting: (1) Google’s 30th effective result appears in page 10 (10 items per page), while Baidu’s appears in page 7. Google is proved again not better than Baidu in Chinese search; (2) The overlap rate of two search engines’ results are very low. (3) the results in Chinese search are very focusing on the political and economic topics, while in the search results of “the Internet is” in English are more virious in cutrual, humanity and literature aspects.

• Donnie: Collection of the ideas and opinions expressed representatives during the Annual National People’s Congress (NPC) Meeting and the National Committee of the Chinese People’s Political Consultative Conference (CPPCC)  (1) | (2) | (3)

The “two national meetings” held in March is one the most important political matters in each year. This three entries collected the opinions and proposals raised by people’s representatives and members of CPPCC. Here are some examples:
(1) Yanqi (member of CPPCC) suggested to close all net cafes and take them over to the government;
(2) Shen Changfu (a people’s representative) proposed to classify the online expressions, and promulgate a compulsory rule requiring the online game service providers interrupt the services each day for a certain amount of hours.
(3) Xu Long (a people’s representative) proposed to make a gerneral E-commerce Law;
(4) Shen Mingcai (a people’s representative) proposed to establish a national universal platform that provide the links to every government agencies in all levels of the government;
(5) Xia Ji’en (a people’s representative) proposed to promulgate laws encouraging the people starting their own businesses online;
(6) Gao Wanneng (a people’s representative) proposed net cafes stopping service by 24:00;
(7) China National Democratic Construction Association proposed to increase the job vacancies of the Internet industry;
(8) Hou Xinyi (a member of CPPCC) suggested to make all the proposals and suggestions by the representatives public;
(9) People’s representatives suggest the regulation of “Real Name surfing in the background”, which means requiring netizens register the real name before approved to access the Internet, but their real name needs not to be released to the public when they are surfing the Internet;
(10) Li Yizhong, Minister of Industry and Information Technology commented to the resent Google’s news (read here the news at People’s Daily English)

• Donnie: The shortcomings of the provisions on “the right of performance” in China’s Copyright Law

The definition of “the right of performance” in China’s Copyright Law has inherent shortcomings. It uses the term “播送” (communicate) but not “perform” as the predicate of the sentence. The legislators attempted to regulate the mechanical perfomance, but they forgot that the word “performance” itself in the Berne Convention includes the meaning of mechanical performance. The “communication” is another concept in another totally different context. China’s Copyright Law confused the two conducts and this leads the provisions hard to be understood. Eventually, this courses the overlap and obscuration between the right of performance and the right of broadcast, between the right of performance and the right of presentation, as well as between the right of performance and the right of communication to the public through information network.

• Donnie: Sharing some experiences in legal academic writing

This article briefly discussed the process of a legal academic writing. It argues that a good author should firstly think like a counsellor who always solve the problem with the most efficient exsiting laws, legal logics and skills. They will exhause, and only exhause the materials related to the problem. Then a further endeavor of the academic author should be compare the pros and cons of different approaches of solving the problem, and find the best solution based on some sorts of values. Lastly, if the above jobs have been done by others, a researcher may try to move from the legal study to the legislative study, with the doctrinal, economic, sociological and even religious approaches – while these may exceed the narrow sence of the legal research.

• Donnie: Chinese Copyright Law is amended

On 26 February, China amended its Copyright Law: (1) deleted the provision in Article 4(1):

Works the publication and dissemination of which are prohibited by law shall not be protected by this Law.

to:

The copyright owners shall not violate the Constitution and the laws, and shall not prejudice the public interests when they are exporing their copyright. The State administrate the publication and dissemination according to the laws.

(2) Added a new article as Article 26 (registration of mortgage with copyright. This has actually regulated previously in other regulations since 1990s).

• Donnie: On the President Hu’s “real name” Micro-blog

A micro-blog acount at People’s Daily’s website (an official news paper) was marked as “verified”. Then it got thousands of followers in a few hours. Then it was proved only a bug of the system – Hu has had a “dialog” with netizens before at the platform of the People’s Daily. Since then an “real name” account was created. When the People’s Daily released its micro-blog service, those “real name” accounts are automatically created a twitter-like page with the mark of “verified”.
This story tell us the so-called “real name” system can hardly garantee the “real” “real name”. Even the President may BE ESTABLISHED a Real Name blog without his consent. What we need to focus on is not the law of real-name access the Internet, but the law of personal data protection, no matter it is associated with a real name or a false one. The law of real-name registration system is based on the presumption of mistrust, and will increase such mistrust among the stakeholders. The law of personal data protection is based on the presumption of trust, and will decrease the misturst eventually.

• Luckie Hong: China IP Weekly Newsletter (22 Feb 2010)

In this issue edited by Luckie Hong, the following news are included:
(1) SNDA’s literature site developed with the copyright strategy;
(2) Xinmate (a shopping mall) was found copyright infringement in a circumstance it rent the floor to a audio & video shop where the pirated copies of CDs were sold;
(3) dianping.com filed a copyright litigation against aibang.com (a verdict search engine provider);
(4) Littlesheep (a chain resturants company) filed a case against National Trademark Review and Adjudication Board;
(5) Google sent a lawyer’s letter to goojje.com, a website provide integration of the Google and Baidu’s search resutls;
(6) “Loungjing” tea was registered as a collective trademark and only providers in Zhejiang Province can use this mark;
(7) two patent granted to World Wide Stationery Manufacturing Co. Ltd. (a Chinese company) were ruled invalide by a U.S. court (WWS v. U.S. Ring);
(8) Lifetime (a U.S. company) sued three Chinese companies for patent infringement;
(9) a color TV patent pool was established on Feb 2010.

• Donnie: The Books that Do Not Need to be Drown out from the Shelves

This short essay is about the Li Zhuang case and the form of rule of law. It is strange that the feeling of reading the news of the Li Zhuang case in the Langdell Library at Harvard. As a Chinese lawyer, I can feel not only the text of the news but also the profound tacit knowledge behind the sentences. When I raised my head from those news, looked up the portraits of those legal giant in the history of the U.S., it seems I suddenly traveled back the time and touched the difficulty of the form of rule of law. For most of the old books in the shelves, they are not nessessary to be drawn out because the rule of law had been blent in the blood of the society after the struggles of the lawyers over years. And China is experiencing such courses of blending.

• Wish you have a pleasant “Tiger Year”

This is a greeting post for the Lunar New year.

• Luckie Hong: China IP Weekly Newsletter (8 Feb 2010)

Edited by Luckie Hong, the following news are included:
(1) New progresses of Hengyuanxiang’s trademark case;
(2) In a case between China Audio-Video Copyright Association and a Karaoke bar, a court in Fuzhou (capital city of Fujian Province) ruled that the defendent infringed the “right of public performance”;
(3) A software license includes an arbitration clause; afte the license is due, the licensee still used the software; the licenser file the infringement litigation but the court supported the opposition of jurisdiction based on the arbitration clause;
(4) over 30 companies use Fuji mark at their lift and elevator products but none of them registered the trademark; now they are sued by the trademark holder;
(5) Based on the new evidence submitted to the court of the second instance, the Chinese GEORGE company wins the “GEORGE and figure” trademark dispute against Walmart in Beijing Higher People’s Court;
(6) A Yunnan company filed a Trademark Cancellation Application to the “coffee mate” owned by Nestle;
(7) An officer in SIPO said the first compulsory license may issued to the medicines relevant to the public health;
(8) Haier wins a patent (ZL200820065744.1) litigation against its employee;
(9) Beijing’s amended intellectual property law holds dangers (WSJ Article).

• Xu Wei: Article 36(1) of the Tort Liability Law of the PRC should be deleted

XU Wei, co-author of Blawgdog posted this article. He argues that the newly promulgated Tort Liability Law wrongfully confused the different criteria of liability.

• Donnie: The Mystery in the Cost of Audio-Visual Copyright’s Collective Management

China Audio-Video Copyright Association (CAVCA) annouced that the cost of its collective management is 50% of the income of the royalties. This essay compared the ASCAP (11.5%), the GEMA (13.92%) and even the Music Copyright Society of China (16.72%). The reason of such a high cost is: CAVCA is running the collective management as a profitable business. So it established a network of commercial companies around China. Such investment violated the Regulations on the Collective Management of Copyright.

• Donnie: AFACT v iiNet Case

This post reported the rulling of the case. And provided the brief of the case and the link at the Wikipedia.

• Donnie: Those old guys sitting behind Obama’s dais

In this essay, I introduced the guys never stand up and applause at Obama’s State of the Union Address. They are the millitary forces and the Justices of the Supreme Court. And narrated the news of Justice Alito’s murmur when Obama critisized the decision of Citizens United v. Federal Election Commission. In the end of essay, I wrote: the democracy without constitutionalism will easily turns to disturbance, and the constitutionalism without real judicial independence will easily be back to the dictatorship.

• Luckie Hong: China IP Weekly Newsletter (1 Feb 2010)

Edited by Luckie Hong, the following news are collected:
(1) In CAVCA’s 170 million income of royalties, 50% is counted as the cost;
(2) Ministry of Industry and Information Technology is drafting the regulation on the digital publication;
(3) A pleading of illicit compelition was filed to a Shanghai court by Tencent (QQ’s oporator);
(4) the “Cabernet” trademark case has entered into the court of second instance; this dispute has lasted for 8 years;
(5) The image of “Dragon Prince” in a popular cartoon was registered as a trademark; now the trademark owner and the copyright owner sue each other for infringement respectively;
(6) ChongQing promulgated the local regulations to encourge the bank loan with the pledge of the Trademark as a property;
(7) According to the stastics of the WIPO, Chinese applicants filed 7971 PCT application (30.1% annual increase, and the most rapid increase in the world), and Huawei ranks the 2nd applicant around the world;
(8) Shinco settled its patent dispute with MPEG LA;
(9) a 18 year old man sued Samsung for patent infringement.

• Donnie: Let’s Sign the The Public Domain Manifesto

In this post, I illustrated the concept of Public Domain (based my on research) and introduced the contents of the Public Domain Manifesto.

• Luckie Hong: China IP Weekly Newsletter (25 Jan 2010)

(1) Google and China Society of Literature Copyright continues negociate on the Goole Books;
(2) “Little Shenyang” (a famous comedian) was sued for the copyright infringement;
(3) Video websites signed the self-regulation announcement on the copyright protection;
(4) A Bejing court ruled that Baidu.com has the duty to examine whether or not the keywords solde for advertisements is used in an infringing way.
(5) The “Shaolin Corporation” attempted to be a listed company; this may trigger a new wave of trademark disputes on “Shaolin” between the Shaolin Temple and the corporation.
(6) “Weichai” involved into a trademark dispute:
(7) Implementing Regulations of the Patent Law has been revised; the regulations on compulsory licenses are improved;
(8) China color TV patent pool is formally oporated;
(9) In the new Implementing Regulations of the Patent Law, the application abroad shall firstly be examined by SIPO with the secrecy concern.

Posted by Donnie at 12:41 PM 0 comments Links to this post

Labels: baidu, book, Chineseposts, cinternet, Copyright, google, license, Luckie, patent, public domain, publication, trademark

Mar 19, 2010

English Abstracts of the Chinese Entries at BlawgDog (Dec. 21th – Jan. 24th)

• Ring the Bell: A 65 minutes Remix Movie created totally in the WOW Game

This movie was made by a few Chinese WOW players. The story is well edited and all the episodes are captured from te WOW game. In this remix movie, the story of the dispute between two Chinese governmental departments on the licensing of the WOW and the the players’ rebellion of the electrotherapeutics to the “net-addiction” are narrated perfectly. The controversial electrotherapeutics was invented by a Chinese psychiatrist and supported by some parents. This is a representative work of Remix by grass-roots Chinese netizens. And it is released with CC-By-NC-SA. Watch it at here (I do wish someone may add English subtitles to it).

• Statistics and Analysis to National Examination for Patent Agent (1998-2009)

This post is contributed by Mr. Xuhui Chen, a new co-author of BLawgDog and a patent lawyer in China. The essay provides the passing rates of each year’s examination and other detailed analysis.

• China IP Weekly Newsletter (17 Jan 2010)

In this issue edited by Luckie Hong, the following news are included: (1) two guys are prosecuted for oporating unauthorized online-game sever of “Audition Dance Battle Online”; (2) A Beijing court ruled that funshion.com infringed copyright by providing downloading; (3) The Measures of payment of the textbooks’ royalties and the Measure of Protection of the Folklores are drafting; (4) Sany group, a major construction machinery producer wins a litigation on its trademark against the figure of “Benz”; (5) Tianjin high technology industry park promulgated a regulation encouraging the endevor of establishing well-known brands; (6) The series cases on the trademark “世界风SHIJIEFENG” was settled by the parties; (7) XGK, a company in Henan province, wins a lawsuit against State Intellectual Property Bureau for its decision of invalitation of the ZL8910393.8 patent; (8) powerdekor, a mojor producer of wood flooring in China, was involved in a patent law suit on its laminate flooring product; (9) Shanghai encourages the application of foreign patent with the maximum of 90,000 RMB financial aid.

• The Story of a Chain Resturant

This post is originally written in English. Click here.

• Google’s Angry, Sacrifice and the Accelerated Splitting Internet

This post is translated and extended in English, please click here for the English version.

• A notice by CNNIC about stop resolving the not “recorded” domain names

This is a copy of the CNNIC’s notice requesting ISPs stopping to resolve the domain name which are not recorded in Ministry of Industry and Information Technology’s website registration/licensing system.

• News on the Proposals for strengthening copyright protection in digital environment in Hong Kong

The Hong Kong government proposed a new version of the Proposals for Strengthening Copyright Protection in the Digital Environment. Xie Lin and Donnie co-authored this short post, which briefly introduced the content of the new proposals.

• China IP Weekly Newsletter (10 Jan 2010)

In this issue edited by Luckie Hong, the following news are included: (1) Google apologized openly for the first time in the copyright dispute between Google and Chinese authors; (2) A US software firm sues China for 2.2 billion dollars for using its copyrighted software in the Green Dam; (3) 50% increase of the copyright registration in China, 2009; (4) Hanwang, a Chinese company finally agree to sell the “iPhone” trademark to Apple; (5) Hengyuanxiang, a major Chinese woolen provider, was trapped in a trademark dispute on the “figure of a Sheep”; (6) the tademark of “Pierre Cardin” was finally selled to a Chinese company for 37 million euro; (7) A Fujian firm won IP lawsuit against FKK, a Japanese chemical giant; (8) A patent dispute about Mercury-free batteries falls into a vicious cycle; (9) RichtekTechnology, a Taiwan firm, sued AMD and other 5 US companies for patent infringement

• A brief note to the attorney-client privilege and the witness privilege

• Copyright Committee of the Internet Society of China was established on 30 Dec

• A US software firm sues China for 2.2 billion dollars for using its copyrighted software in the Green Dam

• China IP Weekly Newsletter (2 Dec. 2009)

In this issue edited by Luckie Hong, the following news are included: (1) Zhejiang Higher Court promulgated a guide for hearing the online copyright disputes; (2) A case on the popular book “Mawen’s War” was ruled in Nanjing; (3) The appealing case on the copyright of electronic navigation map in China (the first one in China) was ruled by Guangdong Higher Court; (4) the exposure draft of the new trademark law was submitted to the Legal Affairs Office of the State Council; (5) Google sent a lawyer’s letter to an individula who is raising an objection to the trademark of Google’s Chinese name Guge (谷歌); (6) Beijing No.1 Intermediate people’s Court affirmed the validity of Judger Group’s (a Zhejiang-based garment enterprise) trademark of GEORGE and its figures; (7) The “Interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement Dispute Cases” was promulgated by the Supreme People’s Court; (8) the new IMPLEMENTING REGULATIONS OF THE PATENT LAW OF THE PEOPLE’S REPUBLIC OF CHINA was passed by the State Council on 30 Dec. 2009; (9) Unilin loses its acts against patent infringing products of Yekalon in Germany.

• Celebrate the Public Domain Day

This post firstly briefed Donnie’s definition of “Public Domain” in the context of Chinese copyright law in his PhD dissertation at China University of Political Science, then introduced the idea of “public domain day” on each January 1st for at this day, many works will fall into the public domain every year. Lastly, the post discussed some famous/interesting Chinese works that will be fall into the public domain since Jan. 1st, 2009.

• BLawgDog’s 2009 Summing-up

In 2009, 170 entries are published at BLawgDog (including 38 English ones). Among them, Donnie contributed about 120 posts, other co-authors contributed about 40 ones. Then this article highlighted a few interesting posts during the year.

• A quick survey: Chinese twitters, are you out of the GFW or in the GFW?

I annouced a very quick survey to Chinese twitter users: whether they are living abroad or inside of the GFW. 88.46% responed they stay in China. For the question “if you live inside of the GFW, are you use twitter frequently”, 70.21% said yes they are. For the question “if you live outside of the GFW, after going back to China, will you use twitter frequently”, 52.94% said yes, but 23.53% said he/she will use twitter only when she/he is out of GFW. For the question “Ask 5 of your QQ buddies randomly, how many of them are using twitter.” 53.85% of the respondent said none of their 5 QQ buddies is using twitter, and only 1.92% said all of the 5 QQ buddies are using twitter too.

• China IP Weekly Newsletter (27 Dec. 2009)

Writen and edited by Luckie Hong, a co-author of BlawgDog, reporting the latest news in IP Law. This issue includes: (1) the promulgation of China’s new Tort Law, in which the ISP’s liability was eventually coded in a questionable way; (2) China association of literature copyright said Google has illegally scanned over 80,000 Chinese books; (3) Taiyuan intermediate peoples court in Shanxi Province issued a warrant of seizure to a karaoke bar for copyright infringement, which is the first time on mainland China; (4) the National Trademark Review and Adjudication Board petitioned to the Supreme Court for the Beijing Court’s rulling of its decision on the “Daohuaxiang” trademark; (5) the dispute of the trademark of *ST Sanlian (SH.600898) will be ruled soon; (6) JNJ (Johnson & Johnson) lost the case on the “Caile” trademark in China; (7) A Newyork listed Shenzhen company was sued for a patent infringement, the damages claimed by the plaintiff was 175 million RMB; (8) Aigo and Netac settled the patent dispute on USB flash drivers; (9) Up to 7 Dec. 2009, the annual number of patent granting is 3007,636.

• The definition of “use” in China’s Copyright Law

This essay reviews the usage of the term “use” in China’s current Copyright Law, and find its definition is hightly confusional, which leads the uncertainty “individul use” in the list of limitations to the copyright in Art. 22 of the Copyright Law.

• Warrant of Seizure for copyright infringement?

This post questioned the legitimacy of issuing a warrant of seizure to Karaoke bars for the reason of copyright infringement, which was happened in Taiyuan, the capital city of Shanxi Province.