Cloud storage providers are often used by pirates to share content in the digital age, whether it’s games, music, or film—and whether with family or friends or for profit. As of 2023, there are nearly 100 cloud storage service providers in China. Baidu Netdisk, hailing from Beijing, is one of the world’s largest. It offers cloud storage services, client software, file management, resource sharing, and third-party integration.
Summary
When receiving copyright infringement complaints, Baidu Netdisk would generally delete specific unique sharing URLs (‘links’) but not permanently block the underlying files from its servers. However, this recent decision found that after being put on notice by the copyright holder, Baidu’s actions did not do enough to prevent the infringement from occurring and, therefore, found Baidu Netdisk indirectly liable. This decision may change that and put more pressure on cloud service providers in the future to block and remove underlying files.
Case details
Shanghai Feicui Eastern Communications Co. Ltd. (also known as “TVBC”) is a copyright agency which is responsible for all TVB business in mainland China. "Gilded Chopsticks" (食為) is a television serial produced by Television Broadcasts Limited (also known as “TVB”). TVB authorized the exclusive right of network dissemination to the Guangzhou Branch of Shanghai Feicui Eastern Communications Co. Ltd (also known as “TVBC”). TVBC Guangzhou Branch found that many users of Baidu Netdisk upload and share digital files of “Gilded Chopsticks”.
TVBC Guangzhou Branch initiated lawsuits claiming that Baidu Netdisk has infringed its exclusive right of network dissemination.
This case was firstly heard by the Guangzhou Tianhe District Court and secondly heard by the Guangzhou IP Court. The Tianhe District Court found no infringement by Baidu Netdisk, but the Guangzhou IP Court found Baidu Netdisk liable for direct and indirect infringement. Baidu applied for a retrial.
Judge OU Lihua analysed the technical aspects of the service provided by Baidu Netdisk and found that the file was downloaded from a third party to the cache server of Baidu Netdisk. Then, the file’s fingerprint was compared to other files existing on Baidu’s servers. Two files will be merged into one and stored if the same file exists. After other users clicked to generate file-sharing links, Baidu Netdisk provided a link to a mapped file. Based on the download address, BitTorrent and other index files, the source of the file is a third party. Therefore, Baidu Netdisk did not constitute direct infringement.
However, after TVBC provided evidence of infringement and sent a C&D letter to Baidu Netdisk, putting them on notice, Baidu Netdisk only deleted the sharing links and did not deal with blocking the infringing files located in the cloud storage in its server. Other users could still generate new sharing links and share with others, which caused expanding losses for TVBC. Due to the intention of contributing to infringement behaviour, Baidu Netdisk’s actions constituted indirect infringement, and it was ordered to pay damages to the amount of RMB 100,000 (USD 13,800).
After issuing the judgment, OU Lihua pointed out:
“The standard of whether the cloud storage service provider has adopted necessary measures towards user’s infringement is whether these measures are sufficient to stop the infringement and prevent future same infringement behaviour”.
Comment
This judgment provides a valuable precedent for cloud storage service providers regarding preventing negligence in future risk management. Also, for copyright holders, it could be more feasible to request cloud storage service providers assist in ceasing infringement after this judgment.
Queries remain as to whether Baidu Netdisk, once put on notice of a file’s infringing nature, could permanently block any file with the same digital fingerprint from being uploaded and/or shared across this network by any user in the future. Effectively, the copyright owner could file one complaint for takedown and achieve 'stay down'.
Authors: James Godefroy & Annie Liang
Source:
Article published by Official WeChat Account of the Guangdong High Court
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