(By You Yunting) According to news, Toutiao, a personalized news app, announced that Toutiao has secured 100 million dollar of Series C financing at a valuation of 500 million dollar. Afterwards, the Beijing News, a traditional paper news, soon posted a comment that Toutiao’s contents are suspected of copyright infringement. However, Toutiao instantly replied in denying infringement. In today’s post, we would like to analyze the infringement issues of Toutiao from the legal prospective.
First is to introduce the push approach of Toutiao. When visiting its official website on a computer, it is found to be relatively regulated, similar with the news channel of Baidu and Google, that every recommended news had an abstract linking to the original website which published the news.
When using its mobile apps, Weibo account and Weixin account, some problems turn out in its recommended news. These three push approaches are similar to each other through the recommendation of the news’ title or abstracts linking to an optimized page on Toutiao.com, followed up with an original link at the bottom of the optimized page. Except for the relatively nice interface, the greatest difference of the optimized page is removing the ads published on the original news. When I was writing this article, I once visited Toutiao’s app and found that the recommended news links was directed to the media’s website at the bottom of the optimized page without ads. However, it is clicking the links at the bottom of the optimized page that could visit the original news. On its Weibo account and Weixin account, the links are also directed to the optimized page on Toutiao.com, other than the original news.
Following the introduction, we would like to introduce some legal problems below:
- Is Toutiao entitled to grasp the contents of news websites?
As the recommending news app, Toutiao shall first grasp relative contents from different news websites through its search engine crawlers, then analyze the news and recommend the news to users. So, is Toutiao entitled to grasp the contents of news websites? According to the general basic tenet of the internet, if the news websites have nothing against Toutiao, Toutiao is entitled to grasp the contents.
If the news websites oppose being grasping through search engine crawlers, the news websites could set up some black/white list in the documents designed for search engine crawlers to prohibit some search engine crawlers from grasping their contents, or enable some search engine crawlers grasping their contents. If the search engine crawlers still forced to grasp the news, the news websites could bring the case to the court on the grounds of Article 2 of the Anti-Unfair Competition Law.
- Is it legitimate for Toutiao to optimize or transcode the news?
Code transformation is new. It may apply for Article 21 of the Regulations on the Protection of Rights to Information Network Communication, stipulating that “where a network service provider obtains the works, performance or audio-visual products from any other network service provider for the purpose of improving the efficiency of network transmission and automatic storage, and automatically provides the aforesaid work to its service objects based on technical arrangement.” But three following conditions shall be satisfied: (1) Having not changed any of the works, performance or audio-visual products that are automatically stored; (2) Having not affected the original network service provider of the works, performance or audio-visual products in grasping the information on the relevant works, performance or audio-visual products received by the service objects; and (3) When the original network service provider revises, deletes or shields the works, performance or audio-visual products, automatically revising, deleting or shielding in accordance with technical arrangement.
- Is it valid to optimize the news contents?
Based on the above two conditions, issues of what Toutiao conducts show up. First, where Toutiao’s optimized page removing the ads from the news website damages the income of the news website, does it satisfied “affecting the original network service provider of the works in grasping the information on the relevant works”? Second, where it appears the Toutiao’s link, instead of the original links from the news website on the optimized page, and may mislead the public, does it satisfied “changing any of the works that are automatically stored”?
Literally, both parties could easily deride interpretation which is beneficial to their individual parties. Maybe there is a big controversy between two parties, no more narration in this article. However, out of the abstract provisions, it may be more clear to read their business scope for reference.
Paper Medias would spend efforts and money on writing original works, which may be paid through selling subscriptions, ads and so on. This is their commercial mode. If users are accustomed to read news of traditional Medias through Toutiao’s mobile apps, Weibo and Weixin, it is difficult for paper Medias to maintain their individual livelihood. Because it is convenient for users to freely read news on Toutiao’s products, decreasing the website visiting and the selling of subscriptions and ads. Thus it is likely to decrease the income of subscriptions and ads.
On the contrary, Toutiao does not neither gather or write any news, nor purchase copyright from traditional Medias like some big websites. Instead, Toutiao makes the use of its advantages on techniques to grasp news and then recommend news to users, and attracts users by removing ads from the original news websites through its techniques on code transformation. At the same time, Toutiao also gets its income through different ads. Even though Toutiao’s using its techniques to analyze, recommend and transcode the news is an outcome of technological progress, their commercial mode is set up upon the damage to the Medias which gathers and writes original news, an obviously more self-interests than win-win results.
Lastly, two years ago there happens a similar case in Europe concerning that traditional Medias filed fights against Google. In that case, different from Toutiao which optimized the news contents, Google displayed the news summary to attract users clicking the links to read the news. More interests please read our previous post Is It Lawful for News Websites to Demand Payment of Fees for Google and Baidu Searches？
Lawyer Contacts
You Yunting：86-21-52134918 youyunting@debund.com/yytbest@gmail.com
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