Chinese Authors Sue Apple for Copyright Infringement
Apr 10, 2012
By Kerrie Spencer, staff writer – April 10, 2012
Seems that turnabout may be fair play when it comes to the issue of copyright infringement. One usually hears about U.S. companies suing Chinese copycat firms for patent infringement and the like. Now, Apple Inc. has apparently landed in hot water by selling unlicensed versions of at least 22 Chinese writer’s works, online in its iTunes store. The authors are not too happy about it either. (1)(2)
To make a point, the authors, well known internationally for their works, have launched three separate lawsuits, requesting $3.7 million in damages for copyright infringement in the reproduction of at least 95 of their works. If this suit is successful, it will be a large pay out and carry a significant rebuke for those who would post written works without an author’s permission and/or attribution. And that would be just the tip of the iceberg, as copyright infringement is applicable in many areas. (3)
Just to provide a quick reminder on copyright infringement issues: this happens when someone, ‘not’ the holder of the copyright, copies the ‘expression’ of a work. In other words, the information/idea that was used to generate the work is not protected. However, how the idea is expressed IS protected. This can ultimately result in someone, thinking they are safe just using a portion of an original work, finding themselves embroiled in a lawsuit. What many people do not realize is that infringement occurs even if the work is not copied exactly; substantially similar is good enough in many cases, which tends to happen frequently in art or music.
Copyright owners need to be aware of the complete suite of rights that may be assigned or sold separately. Those rights include the right to reproduce their own work; the right to modify their work to create a new work; the right to distribute their works by any manner appropriate; the right to show their work to the public in a public place and the right to perform their works in any manner.
As with many legal concepts, there are exceptions to this rule, and in the instance of copyright infringement, the three exceptions are fair use (determined on a case-by-case basis), works in the public domain (not covered by copyright law any longer) and when someone uses material not protected by copyright law (ideas/facts). While this seems to be fairly straightforward, it is not, not with the technology we have today.
In fact, stopping online copyright infringement is a major headache, as just about anything can, and is, copied for redistribution in hundreds of other online spots. If the infringement is serious enough, and the 22 Chinese writers suing Apple Inc. over selling their material without their permission feel that it is, then the issue comes to a head in the form of a lawsuit. The authors include well-liked blogger, race car driver and critic Han Han and author Li Chengpeng. (5)
The Chinese writers have alleged that Apple sold unlicensed versions of at least 95 of their collective works. Twelve of the 22 authors took the extra step of filing separate lawsuits that deal with 59 books; a stunning oversight on the part of Apple. Furthermore, the suit points out that even when the infringement issue was brought to Apple’s attention, they only paid lip service to protecting the authors. (1)
It seems the company did initially comply with a takedown order, and removed the unlicensed works from the iTunes store, in January. While it was a start, they did not ‘stay’ down; reappearing rapidly as contracted developers that put apps online for Apple, reposted them. (1)(2) This begs the question why Apple did not educate its developers about the issue and the pending lawsuit, not to mention discipline them in some way, and why Apple did not license the works in the first place.
The answer to that question may well be that there are more than 500,000 applications, and growing daily, on the iTunes site, making it difficult, if not impossible to oversee what is being uploaded by third-party developers. (4)
Furthermore, under the terms of agreement with Apple, developers are supposed to be responsible for getting the required licensing for any copyrighted/trademarked item. This will make for an interesting case, as there may well be finger-pointing going on regarding who was supposed to be responsible for the proper licensing of the Chinese works. Ultimately, it will depend on what the court decides, but for now, more Chinese writers are contacting their attorneys about this issue.
It appears this is not the first time the China Written Works Copyright Society, in partnership with their members, have sued for copyright infringement. They sued Baidu and Google. Google had the sense to formally apologize, and Baidu deleted close to 2.8 million items as a result of the complaints from 40 authors. (6)(7)(8)
To put this into perspective: if a hugely popular book was downloaded one million times, it would roughly translate into a billion dollar loss for each writer. And, since Apple makes about 30 percent of the money from the sale of digital books, that is a staggering amount of money earned legally, and illegally. The issue is Apple sells pirated books and the vast majority of those buying them have no idea that is the case. (6)(7)
The interesting part of this case, and others like it, is how much responsibility does Apple really have when it comes to publishing unlicensed works in their online store? Certainly they indicate the developers are responsible for acquiring the proper provenance, but does that then absolve them of any further responsibility? Many would think it would not, as they are representing themselves as a forthright, reliable place to buy applications, that customers do not need to worry about.
If Apple is selling pirated books, no matter how they came by them, one would think there would be a moral, if not ethical question involved. The bottom line is that pirating is cheating and cheating is illegal and deprives rightful copyright owners of their livelihood. Perhaps the courts will see it this way as well.
1) Source: redOrbit (http://s.tt/17Kzb)