On August 12, Hangzhou Internet court adjudicated two cases involving 5g cloud game infringing the right of information network dissemination and unfair competition dispute in China. In the first instance, the court ruled that a technology Co., Ltd. in Guangzhou stopped infringing, that is, it stopped providing the above-mentioned games on the "dianyun Caiji" website and the "Caiji" cloud game platform (including Windows version, Android terminal and IOS side), deleted the user data related to the above games, and compensated Shenzhen Tencent computer system Co., Ltd. for "League of heroes", "crossing the line of fire" and "dungeons and Warriors" The economic losses and reasonable expenses caused by the games are 620000 yuan, 530000 yuan and 530000 yuan respectively. The compensation for the economic losses and reasonable expenses caused by the games of "anti war" and "QQ flying car" to Shenzhen Tencent computer system Co., Ltd. and Tencent Technology (Shenzhen) Co., Ltd. are all 450000 yuan. The total compensation for the above five games is 2.58 million yuan due to infringement.

Case review

"League of heroes" and other popular games Sue infringement, Hangzhou Internet court has officially filed a case!

According to iwara A kind of

Shenzhen Tencent computer system Co., Ltd. (hereinafter referred to as Tencent computer company) and Tencent Technology (Shenzhen) Co., Ltd. (hereinafter referred to as Tencent technology company) sued: the second plaintiff is the legal operator and rights safeguarding party of five games involved in the case, namely League of heroes, crossing the line of fire, dungeon and warrior, counter war and QQ flying car, leading the industry into the era of 5g cloud games The game involved in the case enjoys the legitimate competitive rights and interests of copyright protection and cloud game user flow, data acquisition and income. A Guangzhou Science and Technology Co., Ltd. placed the game involved in the case in its cloud server without authorization for the public to use the "Caiji" cloud game platform in the web version, mobile terminal and PC terminal to obtain the game involved, which infringed the two plaintiffs' right of information network dissemination of the game involved in the case. At the same time, it copied the user traffic to its platform, and used the involved game to make drainage propaganda for the "Caiji" cloud game platform According to legend, through the sale of "second entry card" and "extra time card", the paid service of cloud game queuing acceleration and overtime is provided, and the free service of "registration assistant" is provided, which restricts the two plaintiffs' behaviors such as picture quality, function and information link, squeezing the profit space and business opportunities of the two plaintiffs, threatening the user data security of the two plaintiffs and constituting unfair competition.

Two plaintiffs in both cases requested: the defendant should stop providing game works, related value-added services (payment duration, high-quality, paid queue) to users through its official website and "Caiji" cloud game platform (including Windows version, Android terminal and IOS side) and carry out relevant publicity, and the defendant deleted the user data of the game involved in the case collected and stored by the defendant The five games claim a total of 9.6 million yuan in compensation, including reasonable expenses for rights protection.

The defendant argued that A kind of

First, the act involved in the case does not constitute an infringement of the right to network dissemination of works' information. It has been authorized to use the "webmaster" Internet bar management software. It only transforms the physical computer into a "cloud computer" through technical means to disseminate dynamic game pictures for users. The screen is obtained by the player's real-time control of the game, and the right belongs to the player. The two plaintiffs have no right to file a lawsuit against the game involved.

Second, on the "Caiji" cloud game platform, the name of the game involved is only quoted reasonably, and the services of "time card", "second card" and "number assistant" are provided to improve the cloud service experience time, not only for the game involved, and the game operation data is not stored; the screen definition of the game involved is adaptive to ensure the smooth operation of the cloud game It is a common practice in the industry to shield the behavior of opening the browser on the virtual machine for security consideration, so as to avoid users from downloading illegal software through the browser, so as to invade and destroy the virtual machine of the defendant.

Third, the "Caiji" cloud game platform makes the users who could not experience the PC game through the mobile phone become the real users of the second plaintiff, which objectively increases the user flow for the second plaintiff. Tencent cloud game is still in the testing stage, and has not carried out commercial operation. So far, Tencent platform has not suffered actual losses. The amount of compensation claimed by the two plaintiffs has no factual and legal basis.

The court heard the decision

（1） Whether the game involved in the case constitutes a work

The selection and arrangement of the relevant story background, scene setting and plot setting of the five games involved are similar to the creation of a movie script. With the player's operation, a series of continuous dynamic pictures with or without accompanying sound are formed, which is similar to the film shooting and imaging process. After the game creation is completed, it can also be stored on a certain medium, and can be played with the help of computer and other digital hardware devices If it is to be transmitted, works created by the method similar to film making shall be protected. The selection and operation of players is the "process condition" for the final formation of the game picture, and it is not that the players themselves have created the visual game picture. Therefore, the court will not adopt the defense opinion that the rights of the works involved belong to the game players.

（2） Determination of the scope of exclusive license rights

The copyright owners of the three games, League of heroes, dungeons and warriors, and crossing the line of fire, only authorize Tencent computer company to exclusively enjoy the relevant intellectual property rights and interests of the game. Exclusive licensees obtain the property rights and interests of related games from the copyright owners, especially large-scale well-known online games, often need to pay a high price. When the exclusive licensee does not obtain the right to sublicense to the third party, it can not replace the copyright owner to arbitrarily expand the scope of authorization and the authorized subject. This behavior, which is divorced from the copyright owner's control over the right itself, obviously lacks the legitimate basis of the right source. The license of relevant intellectual property rights must be explicitly authorized or ratified by the copyright owner (2) the confirmation of joint operation issued by the plaintiff is not enough to confirm that Tencent technology company has the right to file a lawsuit against the above three games. Tencent technology company only has the qualification of litigation subject for the game of "anti war" and "QQ flying car" developed by itself.

（3） Identification of infringement on the right of network dissemination of works information under cloud game mode

The right of information network communication adjusts the interactive communication behavior under the Internet environment. The core element of the right is to provide works through information network and to obtain works by the public.

In this case, first of all, the main technologies used in cloud games include cloud computing technology for game running and picture rendering, and streaming media transmission technology between cloud and player terminals, that is, game computing and rendering are completed in cloud server. In this process, user's experience of game related works is more dependent on network transmission performance, and cloud game operation mode is realized The media of cloud game screen is composed of player operation command data code, audio stream and video stream. It needs to be transmitted to the cloud server and then decompressed and transmitted to the user terminal. Whether the user operates the game in real time through the input device on the infringing cloud game platform, or the game picture and sound are in the cloud server and different user terminals The mutual transmission is carried out through the information network under the Internet environment;

Secondly, the cloud server should belong to the broad concept of "network server". As the carrier of work storage, it is no doubt that the work can be "uploaded" to or placed in its cloud server. Through the upload behavior and open behavior, it can provide works through different cloud game platforms of different terminals. No matter from the perspective of providing means, server properties or from the perspective of user perception, it meets the requirements“ The requirements of "provision";

Finally, the online operation of cloud game software is also a way for users to obtain their works. Users can obtain works in a point-to-point interactive way. The defendant's behavior should be regulated by the right of information network dissemination.

（4） Identification of unfair competition behavior in cloud game mode

The court held that the first three did not constitute unfair competition, and the fourth did not constitute unfair competition. The details are as follows:

1. From the perspective of copying traffic and draining propaganda behavior, users choose to operate the game involved in the case through "Caiji" cloud game platform, but what they actually enter is the operating system of the game involved in the case on the "Tencent" platform. Even if the PC end users are transformed into other client users, the overall number of users and traffic will still be reflected in the game involved, and will not be caused by the change of "cloud" mode With the increase and decrease of quantity and flow, this kind of drainage propaganda behavior can be covered by the damage consequences of copyright rights, and does not constitute unfair competition.

2. from the "value-added" service of "second card" and "overtime card" and the restriction of the game quality, the "cloud +" and "Internet plus" platform + mode are new business models of the network industry, which are neutral and not specific, and are not the reasons for the unjustifiable acts. The defendant gives users the right to choose the image quality independently, which objectively reduces the resolution of game quality and affects the experience of game players. In view of the negative evaluation brought by this behavior, which is not aimed at the network service quality provided by Tencent platform, should still be used as the damage consequence evaluation of information network communication behavior.

3. As far as the free service of "registration assistant" is concerned, whether to use "registration assistant" service on cloud game platform is a result for users to choose by themselves. The interests generated by user data itself do not belong to the legitimate rights and interests of the two plaintiffs. To take a step further, even if the "registration assistant" function has a greater possibility of threatening data security, it is also the user account and password that are damaged The interests of the two plaintiffs are also irrelevant.

4. In terms of restricting game functions and information links, the defendant directly intervened and restricted the products and services provided by the two plaintiffs without permission, including restricting marketing publicity, information advertising, and surrounding commodity transactions. This move was not informed and actively selected by users, which was not legitimate and accountable. Obviously, the defendant would interfere with and restrict the products and services provided by the two plaintiffs without permission The operation mode and profit-making mode of the drama cause interference and influence, thus squeezing the business opportunities and profit space of Tencent platform, directly leading to the damage of the legitimate interests of the two plaintiffs on relevant games, which constitutes the unfair competition behavior stipulated in Item 4 of Article 12, paragraph 2 of the anti unfair competition law.

Judge's statement

With the development of 5g technology, "cloud" mode will become the main mode of communication, but the right protection mode and boundary brought by the new mode of communication will also become a new problem in judicial trial. As the first case involving 5g cloud game copyright and unfair competition in China, this case takes the technical principle of cloud game mode as the breakthrough point, and makes a beneficial exploration on the examination standard of information network communication infringement under cloud game mode and the boundary between copyright protection and anti unfair competition protection. On the basis of fully protecting the legitimate rights and interests of game owners, this case encourages technological innovation and new business development To maintain the market order of free and fair competition is of great significance to promote the healthy and orderly development of cloud game industry.

（1） Establish the examination standard of information network communication infringement under cloud game mode

Whether cloud game communication constitutes infringement of information network communication should conform to the two core elements of interactivity between providing works through information network and obtaining works by the public. As a new game mode based on 5g cloud computing, cloud game itself needs to run on the cloud server. At the same time, the game picture or instruction after rendering is compressed and transmitted to users through the network through 5g technology. It is essentially an interactive online video stream. When the work is placed on the cloud server, users can click, browse and run through different cloud game platforms At the same time, the work provider infringes the right of information network dissemination.

（2） To clarify the boundary between copyright and anti unfair competition protection under the cloud mode, this case involves the intersection of copyright law and anti unfair competition law. Generally speaking, where the copyright law has already protected, it is not appropriate to seek additional protection in the anti unfair competition law. Based on the change of communication mode, it will inevitably lead to the migration of users (traffic). As the core competitiveness of the Internet age, which traffic snatch mode can cross the protection boundary of special law and be included in the protection category of anti unfair competition is the argument brought by technological innovation to judicial judgment. On the one hand, the business model of cloud games, as a new thing under the development trend of Internet economy, should be protected by law. Only when a specific behavior violates the principle of good faith and recognized business ethics and has illegitimacy or accountability, endangering the legitimate competition order or mechanism, can it be prohibited by the anti unfair competition law.

On the other hand, the market competition in the field of Internet should be based on the legitimacy of competition means and the integrity of competition mechanism, and the fundamental goal of market competition should be considered. Market competition itself belongs to the competition of dynamic trading opportunities, and the behaviors of copying traffic and draining can not all constitute unfair competition. If the attracting users can be covered by other special rights or interests and not caused by it The loss of rights and interests other than users or traffic should not be included in the adjustment scope of anti unfair competition law, otherwise, it will not be conducive to the dynamic development of market competition order.

（3） The balance between encouraging technological innovation and protecting the rights and interests of the obligee

In the trial of cases, the court always adheres to the prudent and inclusive attitude, takes the promotion of innovative competition and the long-term interests of consumers as the guidance, and balances the interests among the network platform, users and competitors in the same industry. While 5g cloud game layout brings incremental market, cloud technology service providers should pay attention to technical innovation and promote industrial development on the premise of respecting and protecting the legitimate rights and interests of game owners. Otherwise, infringement in the name of technological innovation is obviously contrary to the concept of intellectual property protection under the network environment, and is not in line with the concept advocated by the Internet The spirit of competition and innovation.

From the platform side, cloud technology service providers should obtain relevant rights, provide service content, create a good reputation and promote the development of cloud game industry by obtaining authorization and other legal methods; from the content side, the obligee should welcome the generation, promotion and application of new technology, and include the traffic duplication inevitably generated by technological innovation within the reasonable scope of rights and interests protection We will actively explore and develop high-quality game content and optimize user experience. The vigorous development of 5g technology brings new development opportunities for the rapid popularization and accelerated landing of cloud game industry. Only by unremitting efforts in accordance with laws and regulations, integrated development of upstream and downstream enterprises in the industrial chain, and building a new ecology from cloud services to game terminals, can we jointly realize the co construction, CO governance and sharing of "cloud space" in 5g era.

[reminder] material source from Hangzhou Internet court official account. The copyright belongs to the original author. If there is something wrong, please contact to inform us of modification or deletion. Thank you.