21st Century Business Herald reporter Zheng Xue reports from Beijing
Recently, a 7-year dispute between Sina Weibo and Tiktok ended.
In 2017, Sina Weibo "transplanted" the content published on Sina Weibo by users under Byte's "Today's Headline", and published it on the "Today's Headline", believing that Tiktok Company constituted unfair competition and appealing to the court. The first instance verdict found that Tiktok constituted unfair competition and awarded a compensation of 20 million yuan for economic losses and 1156700 yuan for reasonable expenses. Byte disagrees and appeals. On January 11th this year, the second trial result was announced. The court rejected the appeal request of Tiktok (the byte will be renamed as Tiktok in 2022) and upheld the original judgment.
Data has become a new type of production factor, and through the collaborative integration of data elements with other factors such as funds and talents, it can break through practical constraints and form new quality productivity. The full play of the role of data elements still relies on the legal division of the relevant boundaries of data elements.
Data migration triggers controversy
The dispute between the two sides originated in 2017. In August 2017, Weibo administrators issued a community announcement stating that they had received complaints from multiple self media accounts, and a third-party news platform claimed that Weibo had authorized them to use the content of Weibo self media accounts. The Weibo statement stated that the third-party news platform directly crawled content from Weibo, including self media account content, without Weibo's knowledge and authorization. Given the serious nature of this behavior, Weibo will temporarily suspend third-party interfaces to investigate the reasons. If the third-party agreement is violated, rights will be protected in accordance with the law.
Subsequently, Weibo executive Cao Zenghui forwarded the Weibo administrator Weibo and commented that even if the official uses technical means to capture synchronized content, no matter how big the company is, it cannot win any respect. Subsequently, Toutiao's Weibo account was completely banned today. In 2017, both sides went to court on the issue of data migration.
In 2012, Today's Headlines released its first version, which was based on machine learning and combined with various factors such as news popularity and user interest for big data analysis, providing users with interesting news and information. Today's Headlines started with news and information distribution, and the algorithmic content platform posed a great challenge to the original production and production of news and information. In 2017, Today's Headlines was in high demand, and behind its prosperous development, it was also embroiled in multiple infringement disputes.
It is worth noting that in 2017, ByteDance believed that Weimeng Company, for malicious and unfair purposes of restricting competition, only imposed restrictions on "Today's Headlines" in its robots.txt file, prohibiting Today's Headlines from crawling completely public and freely accessible website content, and thus filed a lawsuit against Weibo. The first instance judgment found that the accused behavior of Weimeng Company violated the principles of fair competition, good faith and credibility, and the recognized business ethics of the internet industry. Weibo appealed against it, and the final second instance judgment was made. The accused behavior belongs to the legitimate behavior within the scope of the independent operation rights of Weimengchuangke Company and does not constitute unfair competition behavior.
First instance: Byte constitutes unfair competition, awarded a compensation of 20 million yuan
Beijing Weimengchuangke Network Technology Co., Ltd. Since October 2016, ByteDance has been using technological means to crawl or have its employees manually copy content sourced from Sina Weibo on a large scale, and subsequently publish and display it on Today's Headlines, spreading it to users. ByteDance's actions constitute a substantial replacement for Sina Weibo, maliciously seizing relevant markets through free riding and free riding, causing significant economic losses to Sina and constituting unfair competition.
ByteDance argued that the user in question has issued an authorization letter authorizing them to simultaneously publish content on Sina Weibo on Today's Headlines. Considering that this behavior has expanded the promotional channels for the users involved and improved the experience of other users, the EU's GDPR has confirmed the data portability rights, and companies such as Google have launched new "data migration" projects. ByteDance's involvement in the case did not violate the principles of good faith and recognized business ethics.
ByteDance denies that the actions involved in the case have caused harm to the interests of Weimeng Company. Today's Headlines is based on personalized recommendation engine technology, which provides personalized recommendations based on multiple dimensions such as each user's interests and location. There is no substitutability between the two parties.
The People's Court of Haidian District, Beijing, in its first instance, held that the main points of dispute in the case were four: firstly, whether the rights and interests claimed by Weimeng Company regarding the content of Sina Weibo in question should be protected by the Anti Unfair Competition Law; 2、 The implementing subject of the transplantation behavior involved in the case; 3、 Whether the accused behavior constitutes unfair competition; 4、 If the sued behavior constitutes unfair competition, Tiktok Company shall bear the legal responsibility.
The court believes that the Weibo content displayed and disseminated through the Sina Weibo platform is not simply user generated content, but rather the final result formed by adding the above-mentioned business resources and services invested by Weimeng Company on this basis. Based on the existing evidence, the court has concluded that the transplantation behavior claimed by Weimeng Company in question was carried out by ByteDance Company. The accused behavior of ByteDance Company is deemed to lack legal authorization and improperly damage the legitimate rights and interests of Weimeng Company, disrupt the market competition order, have no benefits to the overall welfare of society, and will harm the long-term interests of consumers, constituting unfair competition.
In May 2021, the Haidian District People's Court in Beijing ultimately supported the lawsuit request of Weimeng Company, which stated that ByteDance Company should immediately stop disseminating content transplanted from the Sina Weibo account in the iOS and Android versions of the "Today's Headlines" App and Toutiao website to users. Regarding the amount of compensation, using a discretionary compensation method, ByteDance Company was determined to compensate Weimeng Company for economic losses of 20 million yuan and reasonable expenses of 1156700 yuan.
Final judgment: uphold the original judgment
In response to the first instance judgment, ByteDance Company disagrees with the first instance judgment and appeals to the Beijing Intellectual Property Court. The case was filed in August 2021. ByteDance Company requests the revocation of the first instance judgment and the rejection of all litigation requests from Weimeng Company. In 2022, Beijing ByteDance Technology Co., Ltd. will be renamed as Tiktok Information Service Co., Ltd. (hereinafter referred to as Tiktok).
The Beijing Intellectual Property Court held in the second instance that Weimeng Company, through legal operation, has invested a huge amount of manpower, material resources, and financial resources in the long term, established and maintained the Sina Weibo platform, collected, stored, reviewed, disseminated, and presented the content of the Weibo involved, and made it a data collection independent of the original data value of a single user, which has important commercial value for Weimeng Company and can bring it huge economic benefits, Enhanced the competitiveness or competitive advantage of Weimeng Company in market competition, therefore, the competitive benefits enjoyed by Weimeng Company in the content of Sina Weibo involved in the case belong to the legitimate rights and interests protected by the 2019 Anti Unfair Competition Law.
The court held that Tiktok Company, without the permission of Weimeng Company, took improper measures to use the Sina Weibo content involved in the case for alternative or homogeneous commercial use by directly "transplanting" it to today's headline platform, which obviously violated the principle of good faith and business ethics, not only harmed the legitimate rights and interests of Weimeng Company, but also disrupted the market competition order and damaged the interests of consumers, Has constituted unfair competition behavior regulated by Article 2 of the Anti Unfair Competition Law of 2019.
In the end, the Beijing Intellectual Property Court found that the facts in the first instance judgment were clear and the handling results were correct, and rejected Tiktok's appeal request. However, due to the change of the enterprise name of Tiktok Company, the result of the first instance judgment was changed accordingly. It is required that Tiktok Company immediately stop the unfair competition behaviors involved in the case from the date when the judgment takes effect; Continuous publication of statements in designated locations is required to eliminate impact; Compensate Weimeng Company for economic losses of 20 million yuan and reasonable expenses of 1156700 yuan.
Currently, with data becoming a new factor of production, the importance of data is becoming increasingly important. Recently, 17 departments jointly issued the "Data Elements" document ×” The Three Year Action Plan (2024-2026) aims to promote the widespread application of data elements in relevant industries and fields, cultivate new quality productivity, and effectively assist in high-quality economic and social development by leveraging scenario driven effects. In the process of data circulation, it is particularly important to clarify the legal boundaries of data capture.
It should be noted that data capture and legitimacy boundaries are the result of equity measurement. Zhang Lu, an assistant professor at the Guangming School of Journalism and Communication at China University of Political Science and Law, previously stated in an interview with reporters that the legitimacy of data crawling is a case by case issue that requires specific analysis, especially in the current situation where data ownership is still unclear, the boundaries of data crawling are more complex.
In terms of determining the legality boundary of data crawling, Wu Shenkuo, a doctoral supervisor at the Law School of Beijing Normal University and deputy director of the Research Center of the China Internet Association, previously stated in an interview with reporters that the boundary of data crawling is mainly determined through three points: first, the legality of the data source. This is related to data type attributes, such as whether the data belongs to personal data, public data, or corporate trade secrets, which can all have an impact. The second is the method of data acquisition. It cannot be obtained by means beyond the legal limit and cannot violate relevant agreements. The third is the purpose of data acquisition. After data acquisition, it cannot be used for illegal purposes, such as illegal transactions, sales, or other commercial purposes beyond the initial authorization.