IFPI wins the 'illegal music download' cases against Yahoo! China


On 20 December 2007, the Beijing Higher People's Court made its final judgment in a lawsuit brought by the International Federation of Phonographic Industry (IFPI) against Yahoo! China for online copyright infringement.  The court held Yahoo! China liable for copyright infringement because it provided search and linking services that directed its users to sound recordings Yahoo! China ought to have known were pirated.

This represents the end to a year-long legal battle between IFPI and Yahoo! China.  The original lawsuit was filed in January 2007 by IFPI on behalf of 11 of its members - all record companies.  The Beijing No. 2 Intermediate People's Court made the first instance judgments in favour of IFPI in April 2007. This was on the grounds that by failing to respond to IFPI's complaints and remove links to pirated songs from their search service, Yahoo! China was assisting in copyright infringement. 

Yahoo! China appealed the April 2007 judgments, and argued that as a neutral search engine provider they should not bear any liability.

The Beijing Higher People's Court has now upheld the lower court's judgments and held Yahoo! China liable. A major breakthrough in this particular case is that the court held that once IFPI advised Yahoo! China that copies of certain song titles were unauthorized, Yahoo! China had an obligation to remove all infringing links to those sound recordings. Prior to the initiation of the lawsuit, Yahoo! China had only deleted links to the specific files complained of by IFPI - even though IFPI had advised that the specific links were merely examples.  The court held that since Yahoo! China had received notice that the song titles were protected by copyright that the failure to delete all other infringing links was an ''obvious indulgence'' of infringement.

As in the first instance case, the 11 IFPI members were represented by Beijing Lusheng Law Firm, Rouse & Co. International's associated law firm in China.  August Zhang, one of the representing lawyers at Lusheng, said ''This is a fantastic result and we believe the ruling will give much more confidence to foreign copyright owners and shows that they can protect their rights in China''.

Dawn Osborne, of Rouse's London office said ''Some US and European courts have suggested that knowingly linking to infringing material can be copyright infringement - but by deciding that a search engine must remove all links to material anywhere on the web based purely on a simple notification by the rights owner, the Chinese Court has made the potential scope of copyright infringement very wide indeed. As with recent moves in Europe to force ISPs to deny access to repeat infringers, this development in China is in line with a growing worldwide trend to make intermediaries liable - in many cases they are the most visible targets to attack to prevent copyright abuses. The Chinese Court dismissed concerns that its judgment would spell disaster for the search engine industry: however, this is an issue which is likely to be played out worldwide for some time to come. The fact that China is at the forefront of developments on this issue is testimony to how far it has come over the last 10 years in the field of protection of IP rights.''

Luke Minford, Rouse & Co. International's China Head, commented that ''As on-line infringement is playing an increasing role in today's copyright environment, the decision in this case is a milestone in judicial progress for the protection of copyright owners' legitimate rights and defines the obligations of Network Service Providers''