Douyin Copying Editing Code of Meishe SDK
In May 2021, Meishe Company discovered that the audio and video editing code within the Douyin app had been largely replicated from its Meishe SDK software, which is protected by copyright. Further investigations indicated that other ByteDance products, such as Jianying, Juyuan Chuangyi, Faceu, Tuchong, Qingyan Camera, Duoshan, and Volcano Engine VESDK, also contained plagiarized code.
In response, Meishe Company took legal action against these eight suspected infringing software products in both the Beijing Intellectual Property Court and the Beijing High People's Court, alleging violations of computer software copyright. Additionally, they filed a lawsuit against Douyin Company and one of its employees for trade secret infringement in the Beijing High People's Court.
北京美摄网络科技有限公司与深圳市脸萌科技有限公司、北京抖音科技有限公司侵害著作权纠纷一审民事判决书
Court Rulings to Confirm Douyin Copyright Infringement
By the end of June 2023 and May 2024, both courts issued preliminary rulings confirming that Douyin Company and its affiliates had indeed
infringed on the copyright of the Meishe SDK software. The courts ordered Douyin Company to issue an apology to Meishe Company and to pay approximately 26.704 million yuan in economic damages and reasonable expenses. Both parties subsequently appealed to the Supreme People's Court.
Supreme Court Increasing Compensation Awards from 26 Million to 83 Million
Recently, the Supreme People's Court upheld the initial ruling regarding copyright infringement but deemed the damages awarded to be insufficient, leading to an increase in the compensation amount. The second-instance ruling required Douyin Company and its affiliates to immediately cease infringing on the Meishe SDK copyright and to apologize to Meishe Company. Furthermore, Douyin Company and the implicated employee were instructed to stop infringing on Meishe Company's trade secrets. The total compensation for economic losses and reasonable expenses across the nine cases amounted to approximately 82.668 million yuan.
The key findings from the Supreme People's Court's second-instance ruling include:
Douyin Company and its affiliates failed to provide the software source code. The court determined that the accused software code was plagiarized based on decompilation analysis and the similarity of distinctive software elements.
Douyin Company and its affiliates accessed Meishe Company's software code through the actions of a specific employee, resulting in trade secret infringement by both the company and the employee.
Douyin Company and its affiliates are responsible for ceasing the infringement, issuing an apology, and compensating for the incurred losses.
Challenges in the Trial and the Court's Reasoning
In cases of computer software copyright infringement, the assessment typically hinges on the criteria of "access + substantial similarity," with "substantial similarity" being the pivotal element in establishing whether the alleged actions amount to copyright infringement. This aspect often presents significant challenges in trials concerning software copyright disputes, particularly those involving code plagiarism.
We presented the SPC's rationale and viewpoint from the final judgment in the Douyin v. Meishe case in detail as follows, focusing on four common challenges that arise in these situations:
Assessing "substantial similarity" when the defendant has not provided the source code of the allegedly infringing software.
Determining the burden of proof regarding "substantial similarity" and the application of rules related to proof obstruction.
Allocating the burden of proof for civil liability concerning "ceasing infringement" and its implications.
Evaluating the appropriate compensation for instances of computer software copyright infringement.
Assessment of substantial similarity between computer softwares
The assessment of similarity or substantial similarity between computer software encompasses not only the comparable elements of the source code, object code, and documentation of the two software programs, but also the similarities in their overall organizational structure, as well as the input and output forms following execution.
In general, comparing the source code is considered the most effective method for determining whether the allegedly infringing software is identical or substantially similar to the copyrighted software. However, it is important to note that a source code comparison is not a mandatory step in establishing copyright infringement. Depending on the unique circumstances of each case, it is possible to demonstrate a strong likelihood of infringement through a collection of corroborating indirect evidence. Additionally, a thorough analysis and evaluation can be conducted using alternative methods.
Substantial aimilarity assessment if the defendant refused to provide source code
In this situation, Douyin Company did not provide the 14 versions of the Douyin software source code that Meishe Company requested within the deadline established by the first-instance court. Instead, the only materials submitted were six 1KB TXT files. Despite several requests for clarification from both the first and second-instance courts, Douyin Company has made it clear that it will not be submitting the source code for the Douyin software relevant to this case. As a result, due to Douyin Company's refusal to provide the necessary source code, it is not possible to assess the substantial similarity of the software through a direct comparison of the source codes from both parties. Consequently, the case will proceed by comparing the assembled code obtained from decompiling the target programs of both parties' software to evaluate their substantial similarity.
The first-instance court has assigned the National Industrial Information Security Development Research Center to conduct an appraisal on the software code in question. After a thorough review of the code comparison results and consideration of various factors, the court determined that two library files from the 14 versions of the Douyin software involved in this case show significant similarities to the corresponding library files in the Meishe SDK software.
Firstly, the appraisal results indicated that the decompiled assembly code of the two library files in the Douyin software contained function names and code that were strikingly identical or similar to those in the Meishe SDK's decompiled assembly code.
Secondly, it was noted that the assembly code function names in the Douyin software included the same typographical errors as those found in the Meishe SDK, raising questions about the possibility of this being a mere coincidence.
Thirdly, the identified similarities between the Douyin software and the Meishe SDK pertained to the core functionalities of both applications.
Fourthly, due to Douyin Company's refusal to provide the source code for the software in question, it was not possible to accurately compare the source code portions that exhibited substantial similarity with public domain code or prior third-party software. The National Industrial Information Security Center made diligent efforts to exclude public domain code through preprocessing steps prior to the comparison and similarity detection.
Fifthly, in terms of excluding limited expression content within the software, the lack of access to the Douyin source code hindered the precise identification of specific content that constituted substantial similarity. The National Industrial Information Security Center conducted the appraisal based on a mutually agreed-upon plan, making manual judgments by considering various factors such as source code comments, operation codes, operands, and statement sequences. They did not find that the similar parts of the software contained limited expression content.
Lastly, regarding the limitations of target code comparison, it is acknowledged that the assembly code generated from decompiling the software's target program typically differs significantly from the actual source code. Additionally, assembly code produced from the same source code using different compilers tends to exhibit considerable variations as well. The appraisal opinion outlined the factors taken into account when assessing the substantial similarity of function codes. This included a thorough examination of all function statements, opcodes, operands, and the sequence of statements. Additionally, a manual analysis is performed based on the outcomes of the similarity matching algorithm, which evaluated the degree of similarity between functions and the significance of any differences in assembly statements on the overall functionality. It is important to note that comparisons were only made when the function code exceeds 10 lines.
Given these considerations, it can be concluded that the disassembled code from various versions of the Douyin software exhibits substantial similarities to the disassembled code from the corresponding target programs in the Meishe SDK.
In conclusion, the second-instance court has determined that the defendant's refusal to provide the complete and accurate source code of the alleged infringing software has hindered the ability to conduct a direct source code comparison, complicating the trial process. Furthermore, the defendant's objections to the first-instance court's decision to engage an appraisal agency for evaluating the decompiled target code are seen as contrary to the principle of good faith and lacking in reasonableness.
In light of the absence of sufficient counter-evidence from Douyin, both the first and second-instance courts, relying on the code comparison results from the identification opinion and considering the aforementioned factors, ultimately concluded that two library files in the 14 versions of the Douyin software are substantially similar to the corresponding library files in the Meishe SDK software.
SPC Framework for Assessing Substantial Similarity in Software Copyright Disputes
In recent years, the Supreme People's Court has established a clear framework for assessing "substantial similarity" in software copyright disputes.
Firstly, the court acknowledges that comparing source code is the most effective method for determining whether the allegedly infringing software and the copyrighted software are identical or substantially similar. However, the court also clarifies that source code comparison is not a mandatory requirement for establishing copyright infringement in computer software cases. If the accused infringer does not provide the source code of the software in question, the rights holder can still present evidence demonstrating that the object code of both software programs is identical or similar.
Additionally, even if the object codes are not the same or similar, the rights holder may show that the accused software contains distinctive elements claimed by them, or that there is substantial similarity in other aspects, such as the software interface, operating parameters, or database structure. In these instances, the court can conclude that there is substantial similarity between the rights holder's software and that of the accused infringer.