Recently, the Beijing Intellectual Property Court concluded an appeal case in which a browser with the functions of "recording while broadcasting" and "one click sharing" was accused to constitute unfair competition.

Iqiyi Company believed that one of the core functions of the 360 browser operated by Qihoo Company was recording while broadcasting and one click sharing. That is, Internet users access Iqiyi's website through 360 browser. Through the function of recording while broadcasting provided by 360 browser, they can watch works and simultaneously record works. 360 browser provides saving and editing services after the recording is completed. 360 browser provides users with "one click sharing" to spread to third-party platforms such as Baijiahao, Toutiao, YouTube, etc. In addition, Qihoo clearly informed Internet users on the 360 website that they could get a share by sharing on the platforms. Accordingly, Iqiyi Company believed that Qihoo, through this function, encouraged users to visit Iqiyi company's website by 360 browser, illegally broadcast and disseminate Iqiyi company's invested works to third-party platforms, and the above acts constituted unfair competition.

After hearing, the court of first instance held that Iqiyi's claim was established, and ruled that Qihoo Company should publish in a newspaper to eliminate the impact, and compensate Iqiyi for damages of 300,000 RMB. Qihoo was not satisfied and appealed to the Beijing Intellectual Property Court, claiming that the above functions belonged to "technology neutrality".

The court of second instance held that, first of all, the "recording while broadcasting" and "one click sharing" functions provided by 360 browser belonged to technical means, and Qihoo also recognized that the above functions provided by Qihoo belong to a type of network technical service.

Secondly, according to the facts on record, the function of recording while broadcasting is actively popped up in the browser playing window when users watch videos on Iqiyi website; and after the recording is completed, the user will be prompted again whether to use the sharing function to share the recorded works to a third-party website for dissemination, and the words "share revenue available by sharing to the following platforms" is displayed. Therefore, the setting of the above functions has certain inducement to the user, which is in line with the situation of "influencing the user's choice or by other ways".

Thirdly, costs are involved in operation. The operating advantages of Internet websites depend on their user traffic. Video website companies invest heavily in purchasing the copyright of film and television works to attract users and traffic, and then obtain income through advertising, member privileges and separate charge on demand, etc. At the same time, in order to protect its business resources, video websites will generally set up technical measures to prohibit users from downloading videos. Iqiyi's business model conforms to the above characteristics, and its business interests are justified and legitimate, which should be protected. Based on this, if users use this function, they can copy and share the works to which Iqiyi Company has rights for free to a third-party platform, and realize free dissemination of the works, resulting in damage to Iqiyi's business resources, further causing loss of its user traffic, and certain damage to the normal operation of its legally provided network services.

Finally, if the legitimate business activities can be interfered, hindered or destroyed by other operators at will, and cannot be protected, it will make the operators unable to expect their own business activities, and then lead to the failure to form a legal and orderly market competition order. Therefore, Qihoo's behavior involved in the case has damaged the good market competition order. Qihoo's argument about its technical neutrality was not accepted by the court of second instance.

In conclusion, the court of second instance found that Qihoo's acts involved had complied with the provisions of paragraph 2 (4) of Article 12 of the Anti-unfair Competition Law and constituted an act of unfair competition. It rejected Qihoo's appeal and upheld the original judgment.

                                                                                                     (Adapted from news of Beijing Intellectual Property Court)


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