Holding that the App in the App Store operated by Apple Inc. (hereinafter referred to as App Store), the Complete Collection of the Works by Jiangnan, Fangxiang and Mengru, without authorization collected Jiuzhou Piaomiao Lu I Manhuang (literally the Country’s Misty Record I Savage) and several other works of the author Jiangnan (whose real name is Yang Zhi) and provided the public with downloading services for reading and obtained economic benefits, while Apple Inc. as the network service provider did not fulfill its duty of reasonable care for the infringing App in App Store, Jiangnan brought a lawsuit to the People's Court of Dongcheng District, Beijing against Apple Inc. claiming to have Apple Inc. delete the above-mentioned App in the App Store and compensate for the damages and reasonable expenses, etc. Recently, Dongcheng Court made the first-instance judgment, ordering Apple Inc. to compensate Jiangnan for a total amount of over 238,000 RMB.

According to the lawyer of Jiangnan, the above mentioned Jiuzhou and other works have enjoyed extensive popularity among readers since publication and achieved good economic benefits, for which Jiangnan enjoy the copyright according to the La w. IPhone, iPad and the like made and sold by Apple Inc. are all installed with App Store, of which Apple Inc. is the operator. It is found through investigation that the App “Complete Collection of the Works by Jiangnan, Fangxiang and Mengru” in the App Store collected the above mentioned works without authorization, and users can log onto the App Store through iPhone, iPad and the like and download the works at issue through said App to the end products of Apple Inc. for reading. In addition, readers can also download the works at issue through Apple Inc.'s software iTunes to computer terminals and then connect to any of the product line made by Apple Inc. for reading. Apple Inc. as the network service provider did not fulfill its duty of reasonable care for the alleged infringing App in App Store, negligent of the auditing and management of the App at issue, and therefore should be liable for the consequences.

In the defense, Apple Inc. claims not to be the operator of App Store in China and has not conducted the alleged infringement, while the actual operator of App Store is ITunes S.A.R.L.; the App at issue was solely completed by third-party developers; Apple Inc. did not have developing, uploading, releasing, or removing conduct nor rendering any assistance. Apple Inc. should not bear the liability for the infringement behavior of the third-party developer and does not have the intentional fault of knowing or should know the infringement. In addition, the operator of App Store does not know and should not know the alleged infringement act of the developer, and has performed its duty of reasonable care as the network service provider; therefore it should not bear any liabilities.

Dongcheng Court held after trial that Apple Inc. should have known that the App at issue was provided by the App developer without authorization and still did not take reasonable precautions, and therefore it can be determined that the defendant did not fulfill the duty of reasonable care that was intentionally faulty, whose behavior at issue should constitute infringement and it should bear the civil liability of stopping infringement and compensation for the damages. The Court therefore made the first instance judgment that the defendant Apple Inc. should compensate Jiangnan for more than 238,000 RMB, based on the number of characters covered in the work at issue combined with other factors such as the difficulty of creation and market value of the work at issue as well as the way and scope of infringement and the degree of intentional fault on the part of Apple Inc., with reference to relevant provisions on remuneration in China.


   (Adapted from China IP News)

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