Appellant (plaintiff of the original trial): Tu Dong Qing, male, born on 5th Dec. 1959, Han nationality. 

    Address: 406-132, Dongfeng Road, Changsha 

    Entrusted Agent: Yang Jing Zhu, Hunan Tong Cheng Lawyer Group Law Firm    

    Entrusted Agent: Xia Jun Mei, Hunan Tong Cheng Lawyer Group Law Firm 


    Appllee (defendant of the original trail): China.com. Corporation Limited 

    Address: 20/F, Wan Guo Bao Tong Center, 18 Weifei Road, Brass Gong Gulf, Hong Kong

????Litigation Representative: Donna Dongli Li????

Entrusted Agent: Fan Huai Li, Guangdong Wan Shang Law Firm

????Entrusted Agent: Wu Di, Guangdong Wan Shang Law Firm

????Appellant, Tu Dong Qing, and appellant, China.com. Corporation Limited (hereinafter referred to as ?°CcC?±),  taking exception to the Civil Judgment (Ref. 2001CIE2C No.178) rendered by the Intermediate People's Court of Changsha on a dispute over tort of network copyright, lodged an appeal with this court. This court set up a collegiate bench accordingly to try the cases openly. The appellant, Tu Dong Qing, and his entrusted agent, Yang Jing Zhu and Xia Jun Mei, and the entrusted agent of CcC, Fan Huai Li all attended the trail. This court has now finalized the case. 

????The original court finds that: On 15th March 2000, CcC made an announcement on its website, China.com, saying: ?° From 15th March 2000 to 15th May 2000, we launch a competition about starting a business on website. We name the competition as CHINA CUP. The competition starts on 15th March 2000; by using the form of invitational tournament, it??s going to set up sub-competition district in eight cities all over the country; and after collecting all the information of the competitors, the China Organization will choose the reward through public appraisal. The whole campaign is temporarily decided to end up at the bottom of June.?± When the plaintiff, Tu Dong Qing, read the advertisement of CcC online, he registered in to be the member of CcC by using the name dongqing, and signed an agreement on secret information which means his member category is the member of the agreement on secret information (paper of starting a business). On 14th May 2000, Tu Dong Qing sent a starting project to the defendant online. The main content is: intending to set up a tutor website for the entrance examination of MBA and concrete conceives of the feasibility of setting up this website, way to run the website, construction plane, financial analysis and foreground analysis. In the project, Tu Dong Qing mentioned that due to no similar website in the country at the moment he released the project; there should be no competition between the similar websites. In addition, the training before the MBA examination contains huge business chance, therefore, the website should be set up as quickly as possible and the martek should be occupied as soon as possible. After the foreground analysis of the market, Tu Dong Qing mentioned the detail steps to set up the website and the finacial analysis. He anticipates that the website is founded in the period of July 2001 to June 2003, the assume investment is 5, 400, 000RMB and the total profit in the three years is 10, 600, 000RMB. At the end of the project, Tu Dong Qing put down a note, saying ?° Don??t open the project to the public eye, please e-mail me the result of the choice.?± For three times, CcC made the announcement to postpone the end of the competition to 31st August 2000 and the date to announce the award is also postponed to September 2000. In the period of attending the competition, Tu Dong Qing began to find partners for the prophase work of starting the business, but had not set up the website yet. When Tu Dong Qing went online again to look into his project, he found his project had already been published on the website of CcC and the times of reading is 30, so he stopped the prophase work. During the litigation of the first trail, Tu Dong Qing brought forward that due to the default and the tort made by the defendant, his loss has reached several millionsRMB, he claimed the indemnity from the defendant was 500,000RMB. At the same trail time, Tu Dong Qing provided to the court of the first tail invoices and records of fees for lawyers, traffic, printing and consulting, etc.                

????The original court holds that the announcement about CHINA CUP Starting A Business Online Competition was posted by CcC, with its concrete and certain contents, specialized object and being in the competition only by showing the promise, should be categorized as an offer. Tu Dong Qing??s acts of registering as the member of the agreement on secret information and signing the agreement on secret information with CcC online, which was accepted by CcC, are lawful and effective. According to the competition announcement and the agreement signed by both sides, CcC should keep the information of Tu Dong Qing??s project secret, however, Tu Dong Qing??s Project of Starting a Business has been clicked and read. CcC has not performed its obligation to the project secret; therefore, its act already constructs the breach of contract and shall take the responsibility. Tu Dong Qing??s Project of starting a business, being a creative and originality work on COPYRIGHT LAW, should be protected by COPYRIGHT LAW. The defendant used Tu Dong Qing??s work on its own website without Tu Dong Qing??s permission, therefore its acts already construct torts of Tu Dong Qing??s copyright and should take the responsibility. After Tu Dong Qing appealed to the original court and the original court sent the relative legal documents, CcC has withdrawn Tu Dong Qing??s project and stop the acts of breach and tort. It has no occasion for Tu Dong Qing to ask the sentence to withdraw the project. Tu Dong Qing??s claim for 500,000RMB indemnity from CcC, based on CcC??s acts of breaching the contract and infringing upon Tu Dong Qing??s copyright, cannot be entirely support due to no enough evidences provided, however, according to the result made by the defendant, Tu Dong Qing should get the discretionary indemnity. The original court does not support Tu Dong Qing??s other claims. On these grounds, based on Article 84 and Article 106 of GENERAL PRINCIPLES OF CIVIL LAW OF PEOPLE??S REPUBLIC OF CHINA, Article 2 and Article 45 of COPYRIGHT LAW OF PEOPLE??S REPUBLIC OF CHINA, ORDER: 1. CcC shall pay to Tu Dong Qing, a sum of 60,000RMB, within ten days after the present judgment takes effect.   2. Reject other claims from Tu Dong Qing. The court acceptance fees of 10,010RMB for the first trial shall be paid 8,000RMB by CcC and 2,010RMB by Tu Dong Qing.                

????

    Tu Dong Qing, taking exception to the above Judgment and lodging an appeal with this court, states that the torts of CcC on copyright are established. Based on Article 46 of COPYRIGHT LAW, CcC shall take the responsibility to stop the torts, eliminate the effect, offer an apology openly, indemnity the loss etc.. The appellant??s claim of the open apology from CcC shall get the support from the court. The act CcC took to infringe upon the appellant??s copyright is malicious act, which brings serious results to the appellant and significant effect to the protection from network economy and intellectual property; and based on Judicial Interpretation of the Supreme Court, when the court decides the sum of indemnity, the court can consider the claim of the appellant to calculate the sum according to the direct loss and the expected benefits damaged by the torts, therefore, the sum of indemnity decided by the first trail is too small. In addition, under the situation that the appellant is totally innocent, the court of the first trail orders the appellant to take a part of the court fee and reject the appellant??s claim that CcC pay the fees, such as lawyer fees. This decision is not appropriate. At the same time, the first Judgment rejects the appellant??s claim that CcC shall choose the first time CHINA CUP Starting A Business Online Competition through public appraisal on the original day. On these grounds, the appellant asks the court of the second trail that: 1. Order CcC to offer an open apology to Tu Dong Qing on China.com; 2. Order CcC to indemnify 2,000,000RMB to Tu Dong Qing as the loss; 3. Order CcC to pay the court fees of the first and the second, the lawyer fees of the appellant, Tu Dong Qing, in the first and second trail and other relative fees; and 4. Order CcC to choose through public appraisal on the original date (15th May) and by the original way (the jury consisted by famous experts and authorities in the field).        

????During the second trail, the appellant, Tu Dong Qing, exhibited to this court his willingness to choose COPYRIGHT LAW OF PEOPLE??S REPUBLIC OF CHINA to ask CcC to take the tort liability action over the torts on writer??s right of publication in Copyright Law, Which is based on the regulation of the Article 122 of CONTRACT LAW OF PEOPLE?? S REPUBLIC OF CHINA, and withdraw the item 4 of the above claims. The appellant, Tu Dong Qing admits the facts found by the first trail. In the period of the second trail, Tu Dong Qing does not provide new evidence to this court.   

????In the period of the second trail, CcC does not hand over the defense aiming at the appeal of Tu Dong Qing to this court.

????CcC, taking exception to the Judgment of the first trail and lodging an appeal with this court, states that Intermediate Court of Changsha has no jurisdiction on this case, no matter this case is based on the dispute of  ?°breach and tort?± or is based on the dispute of ?°tort?±. At the time, 21st August 2000, the court of the first trail serviced lawsuit writs by post, CcC brought up a written form of the objection of jurisdiction to Intermediate Court of Changsha on 27th October 2000 and Intermediate Court of Changsha did not reply, therefore, the trail procedure is illegal; the determination of the nature of this case is wrong, due to the breach and the torts are two different kind of disputes and has no possibility to exist at the same time; Tu Dong Qing??s starting project has only two pages, only some thound words, which obviously has not much intellectual and creative work in it. The project has no operability if there is no enough investment and according to the precedents on torts on the copyright, the sums of indemnity are limited, therefore, the sum of indemnity decided by Intermediate Court of Changsha is too high and damages legal rights and economy profits of CcC. On these grounds, the appellant asks the court of the second trail that: 1. Withdraw the original Judgment; 2. Transfer this case to the people??s court, which has the jurisdiction; and 3. The appellee pays the appeal fees.     

????In the period of the second trail, CcC brought to this court the opposition the fact found by the court of the first trail that Tu Dong Qing??s project has been clicked for 30 times. CcC holds that although the project was been published, it did not be clicked. To this object, CcC does not provide evidence to proof. CcC admits other facts found by the first trail. To support its claims above, CcC provides to this court during the second trail the following evidences: 

???? 1??Company registering information of CcC to proof the company is registered in HongKong.

???? 2??The Project of Starting a Business to proof Tu Dong Qing??s project has no operability.

????Both evidences above have cross-examined in the court and Tu Dong Qing has no opposition on the reliability of these two evidences.

????In the period of the second trail, Tu Dong Qing does not hand over the defense aiming at the appeal of CcC to this court.

????In the period of the second trail, this court show a copy of Detail Form of International Special Delivery filled in on 22nd August by Intermediate Court of Changsha and a copy of Certificate issued by Dongfeng Road Post Office, Kaifu District, Changsha. They proof that the statement of complaint of the first trail of this case was posted on 22nd August and arrived on 24th. 

????Evidence above has cross-examined in the court and Tu Dong Qing has no opposition. The appellant, CcC, has opposition on the Certificate issued by Dongfeng Road Post Office, Kaifu District, Changsha. CcC holds that ?°arrived?± cannot proof the party concerned have signed after receiving the legal documents. For this reason, this court asks CcC to adduce evidence to proof the accurate time the statement of complaint was signed, but in the prescribe period CcC did not provide related evidence to this court.


????After the second trail, this court holds that the court of the first trail has a clear holding on the basic evidences and facts of this case. Alought CcC has opposition on the fact that the Project of Starting a Business has been clicked for 30 times, which is related in this case and has been inquired by the court of the first trail, this fact has been proof by the evidence downloaded from the website and provided by Tu Dong Qing and CcC did not provide counter-evidence, therefore, CcC??s opposition of this fact cannot establish. CcC registered in HongKong and the statement of complaint of the first trail of this case was posted on 22nd August 2000 and arrived the company on 24th August.   

????Above facts have been proofed by the evidences of transcripts of the first and the second trail, the Judgment of the first trail, company registering information of CcC, detail form of mailing from the court of the first trail and the Certificate from the post office, etc..    

????This court holds that Tu Dong Qing is the writer of the Project of Starting a Business referred in this case and shall have copyright according to law. During the CHINA CUP Starting A Business Online Competition held by CcC, CcC published the Project of Starting a Business on the website without the permission and cause the project been opened and read online. CcC?? s acts breaches the will of Tu Dong Qing and goes counter to the competition announcement and the agreement of secret information signed with Tu Dong Qing, which constructed the acts of breach of contract. At the same time these acts also violate the right of publishment in the copyright of Tu Dong Qing. Tu Dong Qing??s act of choosing Copyright Law of People??s Republic of China to ask CcC to take the tort liability action over the torts on writer??s right of publication in Copyright Law, Which is based on the regulation of the Article 122 of CONTRACT LAW OF PEOPLE?? S REPUBLIC OF CHINA, is correspondent to the regulation and shall get the support. CcC shall take relative responsibility violating the copyright. This case is the dispute over torts on copyright and Tu Dong Qing did not provide to this court the evidences to proof the actual loss made by the torts of copyright, besides his claim about the loss of expected profits are the expected profits he can gain after entering the operation of the business of the Project of Starting a Business, which are not the profits coming from the copyright of the Project of Starting a Business, and it beyond the protection field of Copyright Law. And due to the clicked time on the Project of Starting a Business is limited and CcC already stops the tort in the period of the trial, therefore, this court will not support Tu Dong Qing??s claims about the 2,000,000RMB indemnity from CcC and the open apology on China.com. The sum of indemnity and the way of apology in this case will be discretionary decided by this court by systhesizing the fact of torts, details and results of CcC, the regulation of Acts of Reward on Publish Work published by Copyright Bureau of the Country, the possible reward Tu Dong Qing would get by publishing the Project of Starting a Business, fees for the investigation to stop the torts (including traffic fees and printing fees, etc.) and litigation fees. This court rejects Tu Dong Qing ??s claim about CcC pays the lawyer fees and court fees due to no law can be relayed on. CcC did not bring up the opposition of jurisdiction during the reply period after receiving the copy of the statement of complaint of the first trail, which shall be regarded to accept the jurisdiction of Intermediate Court of Changsha, therefore, this court does not support CcC??s claim that to transport this case. Based on Article 2, Paragraph 1, Article 10, Paragraph 1, Item 1 and Article 46, Paragraph 1, Item 1 of COPYRIGHT LAW OF PEOPLE??S REPUBLIC OF CHINA, Article 122 of CONRTACT LAW OF PEOPLE??S REPUBLIC OF CHINA, and Article 153, Paragraph 1, Item 2 of LITIGATION LAW OF PEOPLE??S REPUBLIC OF CHINA, this court now adjudges as follows:               

????1. Change the first item of the Civil Judgment (Ref. 2001 CIE2C No. 178) rendered by the Intermediate Court of Changsha to: CcC shall pay to the Tu Dong Qing the indemnity, a sum of 16,000RMB within ten days after the present judgment takes effect. If payment is ineffective after the prescribe period, execution will be take on according to Article 223 of CIVIL LITIGATION LAW OF PEOPLE??S REPUBLIC OF CHINA    

????2. CcC shall post an announcement on the home page of its website to offer an open apology to Tu Dong Qing (the content shall be eaamine by this court) with within ten days after the present judgment takes effect. If the apology is ineffective after the prescribe period, this court will post this Judgment on a nationwide website and the costs will be paid by CcC.

????3. Reject other claims of appellant Tu Dong Qing and Appellant CcC.

????The total sum of court fees of the first trail and the second trail of this case is 20,020RMB, the appellant CcC shall pay the 80% (16,016RMB) and the appellant Tu Dong Qing shall pay the 20%( 4,004RMB).   

????This judgment is final.


????????????????????????????????????????????????Chief Judge   Guo Zhi Gang

????????????????????????????????????????????????Deputy Judge  Zeng Zhi Hong

????????????????????????????????????????????????Deputy Judge  Luo Wen Fei

????????????????????????????????????????????????

18th April 2002

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Deputy Clerk  Wang Hui Fang