How to Prove Who Hosts the Infringing Website

By Pei Guihua and Dai Jing,[Internet & Domain]

I. Facts 
Beijing Rosat Film & TV Production Co., Ltd., plaintiff and copyright holder of Baby in Love, the movie involved in the case, filed a claim in July 2007, that the defendant, China Unicom Baicheng Branch, had unlawfully uploaded the movie to its website, without permission, and had infringed on the plaintiff’s right of dissemination of internet information. Defendant contends that it does not host the website and the website shows nothing of it. For this reason, Defendant claims it is not responsible for the infringement and no liabilities should incur.

The Jilin Province Communications Administration has verified the following: The domain name www.bc165.com had been recorded with China Unicom Baicheng Branch as its sponsor; the nature of the sponsor unit was “Individual”; the valid ID number of the sponsor unit was QiDuJiFenZi No. 00147; the record was filed with “IAP filing on behalf of the sponsor unit”; the record was maintained by China Unicom Jilin Branch; the website name was China Unicom Baicheng Branch; the name of the responsible person was Han Tieyue with his/her personal ID number and mobile phone number provided; the Internet Access Provider (IAP) was China Unicom Jilin Branch; and the IP address of the website was 61.243.252.136. The registration number of the defendant’s company was QiDuJiFenZi No. 00147. A search found that the owner of the Website was unknown.

China Unicom Jilin Branch, as the IAP, acknowledged that it had filed the record information of the Website. It also said that the Website was a private-server forum of Liuxingyu Internet Bar at the address of Anguang Town, Baicheng City, Jilin Province, which was no longer in operation. It admits it had temporarily used the personal ID of Han Tieyue, a contact person for dedicated-line internet access, in the record-filing formalities, but failed to correct this information after it changed. It had changed the record information on the Website by deleting the information regarding the defendant. The IP address 61.243.252.136 had been distributed by China Unicom Jilin Branch, but currently, it had been re-distributed to the website of Da’an Educational Web for dedicated line internet access on October 25, 2005. That website had the dedicated line internet access and the registered user was Da’an Education Bureau. As the search disclosed, the domain www.dajyw.com was registered on April 12, 2005 but the registration contained no information of its host.
The central problem of this dispute is whether defendant is the host of website www.bc165.com. The identity of the sponsor/owner of a website can be determined with the help of the information recorded by the relevant administrative department, or the domain name registration information displayed by the domain name registration service provider, or the copyright notice on the web pages. In this case, the Website did not show any information concerning the host, nor did the domain name registration clearly indicate the host, nor could the plaintiff pinpoint the website’s server location by the IP address. Thence, plaintiff’s contention that the defendant was the host of the said website rested only on the information obtained from the ICP/IP record of the Ministry of Industry and Information Technology.

Under the relevant laws, recordation of a non-business website is conducted on the Internet, and the recording authorities carry no substantive examination over the information provided on a non-business website. Procedurally, the information recorded by the Internet does not carry as much weight of evidence as that of a relevant government administration. Also, according to the Methods on Maintenance of Non-business Internet Service Records, the sponsor of a website may file its record on the Internet or appoint an IAP to file such record on its behalf. In the latter case, the relationship between the sponsor and the IAP is a relationship of appointment. In this case, the record information of the Website showed that the defendant was the record subject and the record was filled and submitted by the IAP, China Unicom Jilin Branch. During the trial the defendant denied the accusation that the defendant was the record subject and the “appointer” in the filing of the record with respect to the Website. China Unicom Jilin Province, as the “appointee” in the filing of the record, clarified that the “appointer” was another person other than the defendant.

The court held that despite the affiliation between China Unicom Jilin Branch and the defendant, without any other supportive evidence, China Unicom Jilin Branch’s claim could not substantiate the actual owner of the Website. In addition, the plaintiff failed to provide sufficient evidence to prove that the Website was owned by the defendant, because the defendant, although shown as the subject in the record information with the relevant administration, denied that it had filed the record and China Unicom Jilin Branch, as the subject appointed to file the record, also denied that the record filing was resulted from any appointment by the defendant. Therefore, the plaintiff's claim lacked sufficient evidence and was dismissed by the court. In accordance with Article 64.1 of the Civil Procedural Law of the People’s Republic of China, the court judged as follows: The litigious claim of the defendant, Beijing Rosat Film & TV Production Co., Ltd., was overruled. The Plaintiff, unsatisfied with the judgment of first instance, appealed to the No. 2 Intermediate People’s Court of Beijing. The second-instance court judged to affirm the original judgment.

II. Question – Proof of website ownership
A website is virtual, but the webhost is real. The legal consequences of website infringement shall be borne by the host of the infringing website. However, the Internet, as a new medium, provides so much information and spreads the information so fast that the traditional media cannot keep up. When supervising or transmitting information, Internet operators are often less strict in their examination of the Internet content than traditional media content providers. This leads to a higher probability of Internet infringement and more difficulties for a right owner to obtain the evidence necessary to assert its claims.

Among these difficulties, the foremost issue is how to identify the host of a website, which is key to naming an appropriate defendant to establish liability and receive damages. Therefore, proprietorship of a website is the primary issue that must be resolved first legal hurdle in dealing with Internet infringements. To sum, there are two steps: First, the burden of proof is placed on the plaintiff to provide evidence proprietorship of the website; Second, the probative weight and credibility of that evidence must be sufficient to establish proprietorship.

III. Burden of proof
Article 64(1) of the Civil Procedural of China follows the axiom that “semper necessitas probandi incumbit ei qui agit” (the necessity of proof lies with the person who claims). In a claim against a webhost, the plaintiff bears the burden of proving that an actor has committed the alleged infringing activities, that is, to establish who has committed the infringement. In this case, the plaintiff introduced the record of information from the relevant telecommunication administration to show that defendant was the host. However, such proof is rebuttable when the showing is denied by defendant. Shifting the burden of proof became a precondition for winning the case. First, the plaintiff sued the defendant based on the record information filed with the relevant telecommunication administration. The plaintiff’s initial filing established a relationship of rights and obligations existed between the two parties, which was necessary to initiate the lawsuit. The plaintiff provided evidence sufficient to support its suit, that is, the plaintiff had met its burden of proof. However, the initiation of a law suit does not end the material examination by the court. The defendant, in the substantive defense, denied it was the operator of the Website. The question at this point is who bears the burden of proof to establish who the actual operator of the Website is. Under the traditional principles of the burden of proof, the plaintiff must provide sufficient evidence or suffer the legal consequences of the inability to meet this burden. But, what we need to discuss is that the right owner is relatively disadvantaged in the virtual Internet spaces. However, requiring the plaintiff to bear the burden of proof at all times contradicts the original intention of setting up the burden of proof, which is that the burden of proof should be balanced and shared between the parties. For this reason we must make break through the principle that “who is asserting should prove”. It demands precise legal perception and judgment of the judge. In this case, to maintain the honesty and credit and protect the right owner, we can say that the plaintiff, as the right owner, had fulfilled its obligation and met the initial burden of proof. It had provided the record information of the website with the relevant administration which basically identified the defendant as the website owner. However, as the defendant denied the truthfulness of the record information, the burden of proof should then be shifted onto the defendant, in order to truly embody the principle that “who is asserting should prove.” The defendant should bear the burden of proving that the record information was erroneous so as to deny the subject that the record referred to.1

In summary, to prove the ownership of the website in an Internet infringement case, the principle is that the plaintiff should bear the burden of proof and the defendant should provide any evidence to the contrary only if it objects after the plaintiff has provided the preliminary evidence. The judge should then make a general judgment and determination based on the evidence provided by both of the parties.

IV. Evidences and their probative weight
In this case, the court used the following formula to determine the ownership of the Website, considering the virtuality of the Website and the status quo of the administration of the Internet nationally: The identity of the non-business Website must be defined with the information recorded by the relevant telecommunication department, and/or the domain name information registered with the relevant domain name registration service provider, and/or any copyright notice on the web pages. As the web pages did not contain any mark of the right owner nor left the address or telephone number in the “Contact Us” and the domain name registration did not clarify its holder. Consequently the record from the relevant administration was the only evidence available to prove the ownership of the Website. When the defendant denied the truthfulness of the record, the issue shifted to how the court treats the information recorded by the relevant telecommunication department to prove the identity of the operator. The court also had to determine which party carried the burden of proof regarding the record and any other evidence, when they are in conflict with each other. 

In resolving these issues, the holding of the court was as follows: First, because the record-maintaining department would not substantively examine the information submitted by a non-business website, the record of the Website did not have the force of confirmation by the relevant administration and could be rebutted if sufficient evidence to the contrary was provided. Second, as shown, the record was filed by China Unicom Jilin Branch, an IAP, on behalf of the owner of the Website, and the IAP, as the filer of the record, denied any appointment by the defendant and further proved that the Website was owned by another person or entity than the defendant. Despite the fact that China Unicom Jilin Branch was affiliated to the defendant, the truthfulness of the testimony, as held by the court, could not be denied simply on account of this association. This was because China Unicom Jilin Branch, an independent undertaker of its civil liabilities, was fully aware that it would be held liable for any false statement made by it and for contributory infringement if the Website owner was unknown. As such, it had testified as the above, and the testimony should be held as truthful to some extent. From the above determinations, we may summarize the use of relevant evidence and the weight of that evidence in establishing website ownership as follows:

1. ICP business permit
According to the Methods on Administration of Internet Information Services, the provider of Internet information services for business purposes shall obtain an operation license of value-added telecommunication service of Internet information services, that is, the ICP license, from a telecommunication administration of the province, autonomous region or municipality directory under the central government or from the competent department of information technology under the State Council. In China, this administrative licensing system controls the business websites and therefore the ICP license issued by the telecommunication administrations has the force confirmed by the state administrative organs. According to Article 77 (I) of the A Few Stipulations on Evidences in Civil Litigations, the ICP license issued by the state administrative organ is legally probative and with respect to website ownership, the court may directly go to the “Operator Unit Name” and other information on the ICP license to identify the operator of an infringing website.

2. ICP record of information  
a. ICP record information of non-business website
In the case concerned, the court held that the record of the non-business Website only had a preliminary probative force and could be rebutted by sufficient evidence to the contrary. This is fully compatible with the status quo of supervision over non-business websites. In China, the record-filing system applies to the non-business provision of Internet information services. No one shall provide any Internet information services without filing a record with the relevant telecommunication administration. According to the Methods on Administration of Internet Information Services, the record information of the non-business websites is formally examined by the telecommunication administration, that is, whether it is complete as required. No substantive examination will be carried out over this information. Therefore, the record does not have the force of administrative confirmation. When being used as evidence for establishing website ownership, it only has preliminary probative force. The probative force can be rebutted if any other evidence to the contrary proves that the record information is incorrect.

b. ICP record and ICB record of commercial websites
According to Article 8 (I) and (II) of the Detailed Rules on Administration of Internet Websites of China, the website sponsor shall ensure the use of true and correct record information when it files, changes or cancels or appoints an IAP to file, change or cancel any record of the website sponsor with the relevant authority. Also, Article 13 provides that upon obtaining an ICP license, the business website shall submit a record with the relevant administration through the Internet in accordance with the prescribed procedure. As it is examined only formally by the telecommunication administration, this record information is equal to the ICP record information of a non-business website. When used as evidence in establishing website ownership, it only has a preliminary probative force. If proved incorrect by any other evidence to the contrary, its probative force can be rebutted.

According to Article 7.3 of the Methods on Administration of Internet Information Services, when it has obtained the business license, an applicant shall go to the business registration authority with its business license and register itself. Therefore, the business website shall not only submit information for ICP record purposes, but also have itself registered with the local business registration authority, that is, the industrial and commercial bureau (ICB). Although the relevant stipulations require that the ICB record shall strictly comply with the ICP record, the ICB record does not have any direct probative force because no substantive examination is done over it by the industrial and commercial bureau. As a result, it can only serve as preliminary evidence for the website ownership.

c. Webhost notice
A website generally has a column called “Contact Us” at the end where the contact information is provided or contains other features to show who operates the website. This can be used to identify the website operator. In Digital Heritage Publishing Ltd. vs. Baidu Inc. & Huang Yimeng ((2006) YiZhongMinChuZi No. 7251), a case involving the infringement of software work network dissemination, the court decided that the defendant Huang Yimeng was the operator of the website on the grounds that the website contained on its end page a label “沪ICP备05001009号,c2003-2005VeryCD.com Some Right Reserved” and the ICP record of the website concerned. Also, in Beijing Ren’ai Educational Research Institute vs. Zhongshan Readboy Electronics Co., Ltd., a case involving a copyright infringement dispute ((2006) YiZhongMinZhongZi No. 15090), the court decided that the defendant was the operator of the website concerned on the ground that the website concerned contained a salient label “中山市读书郎电子有限公司” (Zhongshan Readboy Electronics Co., Ltd.). Of course, the above decisions had an exception that the defendant would be permitted to provide evidence to contradict and rebut those labels.

d. Domain name registration information
Normally, a webhost coincides with the proprietor of the domain name. However, as domain names can be lawfully transferred or sold, and more than one domain name may be redirected to the same website, which is technologically feasible, there are numerous cases where one website has many domain names and the domain names are held by different persons. As a result, the domain name holders are different and separated from the website operator. Therefore, the domain name holder in the domain name registration can not be simply decided as the website operator, but further evidence is required. Therefore, the domain name registration alone does not have direct probative force. The court cannot rely solely on the domain name registration when determining the identity of the website operator.

e. IP address recordation
According to the requirement of the Administrative Measures on Internet IP Address Records of China, the IP address record contains the basic information of the record filer, such as its name and address, and the basic information of any other users to which the record filer has distributed the IP addresses, if applicable. In practice, a party to a lawsuit may present the IP address record as evidence for the website owner. However, as the distribution of IP addresses is technical and flexible, the court can conclusively determine the identity of the website owner based solely on the IP address record; further evidence is required.

f. Website copyright notice
Generally, the operator of a website will attach a copyright notice on the website to provide the copyright owner information. If the copyright notice is used by the defendant in a lawsuit as evidence for the website ownership, it should be accepted by the court as preliminarily probative. However, its probative force can be rebutted by any other credible evidence to the contrary. This is because the copyright notice may indicate only the subject of copyright in the overall structure and style of the website design other than the subject of ownership in the website. In other words, in practice, the copyright owner may or may not be the website owner. For example, in Beijing Beareyes Info Systems Co., Ltd. vs. Beijing ChineseAll Co., Ltd. ((2006) Yi Zhong Min Zong Zi No. 7345), a case involving a copyright infringement dispute, the defendant website http://www.pcnow.com.cn contained “小熊在线beareyes.com”, “东北站”, “小熊在线东北站” and “Pcnow.com.cn”on the upper side of the homepage and “泽宇公司版权所有”,“辽ICP证03054号”,“Pcnow小熊在线东北站” on the lower side. Here, the operator indicated on the homepage, “小熊在线” (“Beareyes”) was different from the copyright owner, “泽宇公司” (“Zeyu Company”). The court finally decided that Beareyes Info Systems Co., Ltd., rather than Zeyu Company, was the operator of the website on the grounds of other factors, such as the “小熊在线” on the homepage and other evidence. From the above, we can see that the court cannot determine website ownership simply based on the copyright label of the website. It needs further supportive evidence before the final decision.

Ⅴ. Weights of evidence
1. ICP Record vs. Webpage Label
The main question remains: How should courts determine the operator of the website, if the ICP record is inconsistent with the label on the website? It depends on the weight of evidence supporting the respective record and website. As analyzed above, the ICP record and the webpage label are both preliminary evidence for the website operator. They can be both rebutted by sufficient evidence to the contrary. Therefore, they are equivalent to some extent in their probative force and should both be recognized, provided that no evidence to the contrary is provided. For example, in Beijing ChineseAll Co., Ltd. vs. World Executive Consultants Co., Ltd & Shanghai Leadership Advertisement Co., Ltd. ((2006) Yi Zhong Min Zong Zi No. 13337), a case involving a copyright infringement claim, the “Contact Us” section of the website showed that it was run by World Executive Consultants Co., Ltd., while the ICP record of the website showed that Shanghai Leadership Advertisement Co., Ltd. was the website operator. Under the circumstance, the court held that the identity of the website operator as shown webpage label could not be denied on account of the difference between the ICP record and the webpage label. Therefore, as neither of the two defendants could provide any evidence to the contrary and prove it was not the operator of the website, they were both held as the actual operators and were jointly and severally liable for the infringement. As we can see from the above, the ICP record and the webpage label have somewhat equivalent probative forces.

2. ICP Record vs. Domain Name Registration
As discussed above, a domain name can legally be transferred or sold. As a result, in practice, it is possible that the domain name registration may contain information different from that in the ICP record after the transfer or sale. The issue is which one should be used to determine the website operator. In Guangzhou Beauty Media Group vs. China Television Technology Co., Ltd., a case involving a copyright infringement claim, the ICP record indicated that the website was operated by China Television Technology Co., Ltd., and the webpage label on the website showed the name and ICP record number of the company. It is important to note that the search result at www.net.cn showed that the domain name “sootv.com” of the website concerned was registered by an outsider, a certain Purunfa Company. The investigation found that this domain name had been assigned to the Purunfa Company with an Agreement on Assignment of Domain Name at www. net. cn between China Television Technology Co., Ltd. and the Purunfa Company. Now, who was the subject of infringement liability, the operator in the ICP record or the holder of the domain name? The first-instance court held that China Television Technology Co., Ltd. should be liable for the infringement because the webpage label on the website concerned indicated that China Television Technology Co., Ltd. was still the website operator, and Purunfa Company should not be held liable because there was no evidence that Purunfa Company operated the website, even though it had legally acquired the domain name of the website concerned through the domain name assignment. The holding was affirmed by the second-instance court.
To sum up, in judicial practice, when determining the ownership of an infringing website, the court may use the following six categories of evidence: ICP licenses, ICP records, webpage operator labels, domain name registrations, IP address records and webpage copyright notices. Among them, the ICP licenses have the most direct probative force. The remaining ICP records, webpage operator labels, domain name registrations, IP address records and webpage copyright notices only have preliminary probative force, which can be rebutted if any credible evidence to the contrary rebuts the information. Therefore, the court should examine and determine ownership based on this evidence in an overall objective manner, analyze the totality of the evidence and judge the relevancy of the evidence based on the facts and the relationship between the evidence. A fact with mutually supportive evidence should be recognized. If the parties provide contradictory evidence, their weights should be determined on the basis of the circumstances and the evidence with the greatest weight and credibility should be determinative. In terms of their probative forces, by summarizing the precedent rules and practical experiences, we can conclude and arrange them in the following formula: ICP record = webpage operator label > domain name registration, ICP address record and webpage copyright notice. Certainly, all the evidence has to be studied and checked on an individual basis. What the formula provides for is only a normal and probable standard or principle. It needs to be checked and perfected in practice.

Endnote:
1.The above sharing of burden of proof was also embodied in Digital Heritage Publishing Ltd. vs. Baidu Inc. & Huang Yimeng ((2006) YiZhongMinChuZi No. 7251), a case involving the infringement of software network dissemination. The plaintiff claimed the subject of the infringing website verycd.com was the defendant Huang Yimeng. In support of this claim the plaintiff provided the court with a notarization that the search result of the MII ICP/IP Address Information Record Management System showed that the ICP Unit Name for the Verycd.com was Huang Yimeng and the Record Number is ICP Record No. 05001009, and the end page of the website concerned contained “沪ICP备05001009号, c2003-2005VeryCD.com Some Right Reserved.” (“Shanghai ICP Record No. 05001009, c2003-2005VeryCD.com Some Right Reserved”) The defendant argued that the evidence could not prove that Huang Yimeng was the subject of the website Verycd.com and denied its credibility as evidence. The court held that on the basis of the notarization from the plaintiff, it had reason to believe that Huang Yimeng was the owner of the website Verycd.com. The court ruled that Huang Yimeng bore the burden of proof to support his defense that evidence regarding the website Verycd.com lacked credibility or relevancy. Since he failed to provide evidence or proof to support his defense, he was held to be solely liable for the adverse consequences from his inability to prove. The holding was affirmed by the second-instance court.
About the authors:

Pei Guihua, President of IP Tribunal, Dongcheng District Court, Beijing
Dai Jing, Judge’s Clerk IP Tribunal, Dongcheng District Court, Beijing

(Translated by Ren Qingtao)


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