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Recently, NetEase Cloud Music openly shouted QQ Music, accusing it of continuing to plagiarise ‘innovation’, borrowing ‘creativity’ and following ‘updates’ over the years. NetEase Cloud Music cited a number of cases of alleged plagiarism, such as 2013 NetEase Cloud on-line vinyl player page, 2022 QQ Music launched a similar interface; 2020 NetEase Cloud on-line ‘listen together’ function, the end of the year QQ Music on-line ‘music room ‘listen together’ function, QQ Music launched “music room” at the end of the year, and renamed “listen together” in the following year; in the Spring Festival of 2024, NetEase Cloud launched the Forbidden City series of themed players, and in October of the same year, QQ Music launched a similar theme.

QQ Music has not yet responded to the accusation, the same Tencent Music Entertainment Group's Kugou Music but in microblogging on NetEase Cloud Music to be spaced out counterattack, saying ‘the DIY function in the background of the player is not the first to be launched by me,’ ‘I am in this situation and belongs to what kind of innovation mode? ’ The company said, ‘I'm not the first to introduce the DIY function in the background of the player,’ and ‘What kind of innovation model does my situation belong to?

The music giants are once again at war over intellectual property rights. The two giants are suing each other for ‘unfair competition’. According to the eye of the sky data show that in November last year, tencent music sued netease company's case for the first time in court; in February this year, netease cloud sued tencent music's case also entered the trial stage. Both cases were accepted by Hangzhou Intermediate People's Court.

In this battle between NetEase Cloud Music, QQ Music and Kugou Music, the internet has been buzzing with opinions, and various voices have been heard. So, why this legal dispute has never been concluded, Internet products ‘copy each other’ in the end into not established?

Ⅰ, whether it constitutes unfair competition

From the point of view of unfair competition, can QQ Music be identified as a case of intentional imitation to gain competitive advantage and disrupt the order of market competition?

On the one hand, there is ambiguity in the definition of behaviour. NetEase Cloud Music accused QQ Music of plagiarism ‘innovation’, borrowing ‘creativity’, following ‘update’ and other behaviours, but the definition of these behaviours is more complicated. How to accurately define whether this is normal industry borrowing or improper plagiarism and imitation, and whether it is purely based on the degree of similarity in function and design, or whether to consider the R&D process and innovative thinking behind it? If we judge only from the surface similarity, we may misjudge the normal market competition; while if we probe deeply into the R&D process, we will face the difficulties of forensic difficulties and excessive technical expertise. For example, in the disputes over the vinyl playback interface and the ‘Listening to Songs Together’ function, it is difficult to judge the unfair competition behaviour simply from the similarity of appearance or operation process.

On the other hand, judicial practice is complex. In judicial practice, it is often difficult to effectively intervene in imitation behaviours between Internet products if they do not reach a particularly serious large-scale plagiarism. Because of the nature of the Internet industry, the iteration and updating speed of its products is extremely fast, and it is difficult to avoid learning from each other's functions and designs to a certain extent. For example, in this case, QQ Music can prove that some of its functions were independently developed under the industry trend, and only coincidentally similar to NetEase Cloud Music's products in certain aspects; or both parties may have been influenced by other third party's products or the industry's common design concepts (e.g., Kugou Music's ‘shouting’), which resulted in similarities in the products. similarity. This makes it difficult for the court to clearly distinguish between normal competitive behaviour and unfair competition, leading to complex determinations in practice.

In addition, the burden of proof was arduous. In proving whether QQ Music's behaviour constituted unfair competition, it may also be necessary to prove whether it was subjectively intentional, whether it harmed the legitimate rights and interests of NetEase Cloud Music, and whether there was a causal relationship between the two. At the same time, it is also very difficult to quantify the consequences of the damage, such as the loss of users and changes in market share, which are affected by a variety of factors, and it is difficult to prove that they are caused by the alleged behaviour.

In summary, we can see that the difficulty of defending this right should not be underestimated. However, we can also see that there have been cases in judicial practice in which UI (interface design) was found to constitute unfair competition. For example, in 2018, the Beijing Haidian District People's Court held that: the defendant app is an operator providing services through Internet products, and the defendant app directly used the interface design of the Racer app, which is obviously an act of ‘obtaining something for nothing’ by intentionally intercepting other people's interests without paying any labour, which is in violation of the principle of honesty and good faith and the generally accepted business ethics, and finally found that the defendant had violated the Anti-Unfair Competition Law. The defendant was found to have violated the Unfair Competition Law. However, although there are cases, the determination in judicial trials is complex and difficult to conclude.

Ⅱ, whether it constitutes patent infringement

From the perspective of patent infringement, the product design is similar, can be found to infringe? In fact, the patent protection of product design has strict requirements. First of all, patent protection is to achieve a certain appearance or function of the specific programme. For example, NetEase Cloud Music's vinyl playback interface and the ‘Listen to Songs Together’ graphical user interface require a clear definition of the scope of patent protection.

Secondly, it is not easy to judge whether the designs are identical or similar. Even if the final effect of the two products is similar, it cannot simply be concluded that the latter infringes on the former's patent, but also needs to be determined by judicial practice and authoritative appraisal organisations.

Furthermore, both parties may have borrowed designs from other third parties. For example, Xie Huan, vice president of Kugou Music, mentioned the QQ Listen Together function he made in 2006, indicating that in the process of development of the industry, there may be mutual inspiration or borrowing of design ideas between different products. In litigation, the party accused of plagiarism will usually prove the source of its own innovation, claiming that its function or interface design is based on its own independent research and development or inspired by other legitimate sources, rather than infringement of its patent, which will make the judgement more complicated.

Regarding Internet patent infringement, we have to mention the first case of Internet patent infringement: Sogou sued Baidu for infringement of input method patent. Sogou filed eight patent infringement lawsuits with the Beijing Intellectual Property Court, claiming that Baidu's ‘Baidu Input Method’ product infringed on Sogou's patents relating to input method technology, and seeking damages totalling RMB 80 million. The patents claimed to have been infringed involved not only core input functions such as Super Thesaurus, Intelligent Phrase Formation, Cloud Input and related peripheral services. In the end, the court found that Sogou had engaged in unfair competition and should bear the corresponding legal responsibility. However, the results of the case is really hard to come by, this protracted input method patent war for four years of nearly 50 litigation, highlighting the reality of strict intellectual property protection problems.

Ⅲ, the call for innovation and the need to respect copyright

In the dispute between NetEase Cloud Music and QQ Music, all kinds of exchanges seem to be lively, but in fact, it is more like a war of words at the level of public opinion. With the help of open letters, social media and other means, you and I, trying to build a favourable image of their own in the court of public opinion, to public opinion pressure to check and balance the opponent, rather than focusing on the legal level of rigorous and in-depth protection of rights and interests. Although this approach may attract attention in the short term and generate buzz, it does not contribute much to the substantive resolution of the issue.

Although, as we have analysed above, the difficulty of defending the rights of Internet products is time-consuming and difficult, and the results are unknown. But we should still encourage a spirit of truth - in order to safeguard their own innovations and their own rights and interests, reasoned struggle, each other to prove the spirit of truth, once the Internet counterparts in the product innovation aspects of the truth, for the user is a greater good, which means that the user can use to the quality of the product better, as well as have a better product experience.

It is through legal means rather than a war of words to resolve product disputes that represents a kind of progress of the times. It proves that enterprises have generally possessed the awareness of intellectual property protection and rights defence, which will make innovation become the core competitiveness of Internet companies, and this will make the industry competition develop in a more healthy and orderly direction.

From a higher level, the increase in the number of intellectual property patents and cases is actually a manifestation of a country's comprehensive national strength. According to the Report on the Development of Intellectual Property Powerful Nation Building (2024) released by the Intellectual Property Development Research Centre of the State Intellectual Property Office, China's IP Powerful Nation Building Index has steadily improved, reaching 125.5 points, an increase of 4.5% over the previous year. In the Global Innovation Index Report 2024 released by the World Intellectual Property Organisation, China's comprehensive ranking of innovation capacity was ranked 11th in the world, up 1 place from the previous year, with 2 new global top 100 science and technology clusters, and once again ranked first among all countries in terms of the number of clusters with 26. When more people and enterprises are willing to invest in the cause of innovation, the innovation vitality of the whole country will be activated, which will lead to the enhancement of comprehensive national power.

Finally, let's review what NetEase Cloud Music said in its ‘Shout Out’ - ‘less follow-along updating, more real innovation’ - and we look forward to this hotly debated event to make the entire online music platform market and even the entire online music market more innovative. Let the entire online music platform market and even major Internet companies to seriously think about the next step in the innovation of where, the ‘war of words’ of public opinion to suppress the mind in the product innovation, may be able to really win the user's word-of-mouth satisfaction of the work.

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This article by JAVY law firm lawyers original, only on behalf of the author's own views, shall not be regarded as JAVY law firm or its lawyers issued formal legal advice or recommendations. If you need to reproduce or quote any of the content of this article, please indicate the source.