Shulou(Shulou.com)11/24 Report--

This article comes from Weixin Official Accounts: Touch Music (ID: chuappgame), by Peng Chuwei

The case is not small, but it has greater significance.

September 2,2023, Kaihua International Center, Zhujiang New Town, Tianhe District, Guangzhou City, Guangdong Province.

A special moot court is being prepared. The judge, an expert in intellectual property, is about to enter, and lawyers for both sides are already in place. On one side is the "lawyer" of Activision, an American game developer and publisher, and on the other side is the lawyer of Guangzhou Plane Information Technology Co., Ltd.

Miyako attended the moot court. She remembers walking into the firm and seeing polite, well-dressed lawyers split into two groups, waiting for the "judge" to take his seat. She is familiar with this scenario. After graduating from college, she might have become a lawyer, but she chose to pursue the game industry she loved.

That was why this case was particularly important to her.

But at this moment, Miyako, the plaintiff, sits below the stage, thinking about the possibilities of the past. The outcome of the lawsuit was still far away, and all she could do was look at the whole thing from the beginning and see her heart: Was it all worth it?

Moot court live conference call all dating back to July 27, 2022.

Activision, the developer of Call of Duty 18, released a preview of the game's new skin,"Loyal Samoyed," on that day. Later, it was pointed out that this skin is extremely similar to the image of "Samoyed Medical Soldier" exhibited by artist Sail_Lin on artist website ArtStation.

In January 2020, Sail_Lin transferred the copyright of the work to Miyako's Guangzhou Plane Information Technology Co., Ltd., which was used as the image basis for the character "Snow Wind" in the mobile game "Galaxy Realm Line" being developed at that time.

When Sail_Lin heard the news, he sent Miyako a query message: "Do you have authorization for Activision Samaya? "

Miyako was stunned by the news that Galaxy Lines was at a critical stage of development-she didn't expect the game she was developing to get involved in licensing issues with Activision.

"I was a little confused. After a simple exchange, I went online to know the ins and outs. Like most small teams of game developers, Miyako and her colleagues were troubled by the fact that she felt Activision might have been involved in plagiarism and infringement, and she didn't believe it would be so obvious.

"Call of Duty 18" skin and character "Snow Wind" contrast picture waiting for her to come back to God, Sail_Lin is microblogging against Activision.

Miyako felt a little bad: "I should have communicated with Activision first. Sail_Lin moved too fast, causing the whole incident to become chaotic. He didn't mention authorization related things on Weibo. "

Subsequent developments confirmed her fears. Soon, some players asked whether Galaxy Realm Line copied Sail_Lin's work under related topics, and members of the team also asked her: "Did we really copy it? "

Miyako was not the only one who was questioned. Sail_Lin also felt: "There were many difficulties at that time. "

As a personal painter, it was difficult for him to attract the other party's attention. At the same time, he also lacks legal support related to overseas rights protection. It is difficult to get Activision's response, which can only lead to endless arguments in the player circle.

In this case, Miyako went to Sail_Lin and said,"We'd better defend our rights together in the future. "She told the other party the reason: " Activision's infringement is difficult to protect by individuals alone. At the same time, the game I am responsible for has suffered a lot of damage and needs Activision to clarify. "

To protect rights together, we must first prove that we are the infringed party. Sail_Lin has works as evidence, Miyako needs to provide his own authorization certificate.

Miyako graduated in law, so she is "sensitive" to the terms. This sensitivity comes into play at this time. She knew that when dealing with Activision's legal staff, she had to ensure that the evidence was rigorous and complete.

At this point, the facts are in their favor. In addition to verbally confirming copyright-related rights when they agreed on the license, they also chose a third-party platform,"Rice Painter," to trade. The relevant transaction terms of the platform clearly state that the nature of the transaction occurring on the platform is "copyright transfer."

This is important. They wrote this in an email to Activision, which went out under the name Sail_Lin.

In the English-language version of the email sent to Activision, they repeated details about the copyright. A few days later, they received a reply from Activision's lawyer, who said they could discuss the matter in a transoceanic conference call.

The conference call was scheduled for two weeks. During this time Miyako noticed anxiously that Activision had withdrawn all videos and messages related to the skin preview. On August 16,2022, Activision held the first conference call with painter and Guangzhou Plane Information Technology Co., Ltd.

Miyako did not choose to participate in this meeting. And the reason is: "there's nothing I can do about it. Let someone else handle it. "

"Thinking about it later,(this behavior) was an escape for me. "she added.

In the first conference call, Activision lawyers briefly understood the rights and claims of Guangzhou Plane Information Technology Co., Ltd. and Sail_Lin, but did not respond to or explain the incident, saying only: "We need to know the situation internally first. "

In the second conference call, Activision lawyers explained to them the results of an "internal investigation" to the effect that they did use Sail_Lin's work as a reference, but not plagiarism and infringement, but a workflow error that has now been withdrawn.

Sail_Lin and Miyako continue to make their own demands: "I hope to publicly explain the fact that Call of Duty 18 infringes on the role of 'Samoya', and apologize and eliminate the impact." Activision's lawyer replied: "There will be results. "

The conference call ended in such a stalemate.

A few days later, they received an email from Autovision saying,"An apology has been issued. "And attached is a screenshot of CharlieIntel's tweet for" game information number."

The game info number does not belong to Activision, which is not the apology Miyako and Sail_Lin want. Miyako explained: "In this tweet, the nature of the whole incident is defined as 'erred in our process' and 'misstep' which are two less derogatory terms. There is no mention of who is apologizing for what, and the message is posted on an unofficial information account. "

They emailed Activision again, but received little response.

The artist received insulting emails from the player. In the weeks that followed, Sail_Lin tweeted that he "couldn't concentrate on drawing any characters." Miyako, on the other hand, clearly feels depressed: "I can't concentrate on my work. "

There was some confusion within the development team. Miyako recalls: "There were comments that I didn't care about it, that I didn't know how to catch the popularity of the game by public opinion. "

Miyako felt most depressed by some comments such as "Activision copied you, you got a big bargain" and even someone sent her a message: "Congratulations on passive vision copying. "

Miyako was "disgusted and troubled" by it. In the process, she came to realize that the whole incident affected her more than just copyright infringement or plagiarism-too far away to discuss for a game that had not yet been developed. The key point was that the disregard for motion vision and the comments of people around her were, in Miyako's view,"ridicule for not doing anything about themselves." "

In the end, Miyako felt she had to "do something."

As early as August 1,2022, Miyako briefly had the idea of taking legal measures to protect her rights.

At that time, Miyako discussed the possibility of overseas litigation with senior partners of overseas law firm Huo Jin Lu Wei under the introduction of the university monitor.

To her surprise, the partner's first question was: "Is there enough to sue Activision for a million dollars? "

At the time,$1 million was a distant number for Miyako's gaming team. Their last product was the Steam indie game Cloudgather: Lost Magic, which made little money. The Galaxy Boundary Line is also under development. There's no way the whole lawsuit is worth $1 million. Miyako had no choice but to give up.

Cloud Gathering: Lost Magic is a niche CRPG and when the idea of a lawsuit arose again, she decided to initiate a lawsuit from home. She thought of another classmate, Lao Chen, an associate professor at Jinan University's School of Intellectual Property.

Mr. Chen has a degree in intellectual property from the University of California, Berkeley Law School, and is familiar with relevant laws and legal matters overseas and at home. After erasing the information at stake and discussing with colleagues at the intellectual property institute past cases in similar cases under domestic court jurisdiction, Chen came to the conclusion that "domestic litigation is possible."

As for the likelihood, Chen told Miyako: "The main difficulty lies in whether the evidence submitted by the attorney is sufficient. "

So the question becomes: Can Miyako and her gaming team afford top-notch lawyers? Domestic litigation costs less than overseas litigation, but it's not a small sum, with similar cases costing between 200,000 and 300,000, according to Touch's survey.

This price exceeded Miyako's psychological expectations.

At this time, Qing extended a helping hand to Miyako. Qing Qing is a senior partner of a law firm in Guangdong. This law firm has a first-class team in the field of Internet intellectual property litigation in China and has represented many domestic game manufacturers in litigation.

Miyako and Kiyoshi know each other well because of their overlapping fields of work, so Kiyoshi is willing to try to ask the law firm for Miyako: "Can this case be accepted?" "

Because this case itself is quite special: in the past, most of the intellectual property litigation cases related to games were initiated overseas against China, or large factories initiated lawsuits against small factories. It's rare for a small domestic gaming company to sue a giant like Activision overseas. This piqued the interest of the law firm, and with Qing's help, Miyako was able to find a lawyer at a price she could afford.

As noted above, the key to the court's jurisdiction in this lawsuit is whether the plaintiff has "very sufficient" evidence.

In the early stage of evidence collection, the lawyer mainly collected evidence that Miyako was the subject of the lawsuit: this evidence included details related to authorization and all relevant information about the infringed character "Snow Wind." For example, Snow Wind Coser, which was exhibited in the comic book exhibition of Galaxy Realm Line, and some materials published.

In addition, lawyers set out to gather evidence in support of Activision violations. Since the first-hand trailer video has been withdrawn, the lawyer can only collect second-hand retweets and player comments, because the information comes from the Internet, so they spend a long time in the notary office. "While notarizing, screenshots will be taken. After the cut-off, the pictures will be translated and notarized after translation. Miyako recalls.

After completing the cumbersome evidence and document preparation process, on September 15,2022, Miyako's Guangzhou Plane Information Technology Co., Ltd. formally submitted a lawsuit request to Guangzhou Intellectual Property Court.

At the moment of submission, Miyako felt "relieved. "The reason is: 'At least I'm trying to do what I think is right. "

As she described the incident to Touch, she mentioned: "The reason I chose not to seek help from public opinion was because I didn't want the game to be symbolized as an unknown victim, as in the early news. "

At the same time, she also felt: "Using this image to seek benefits, using such a narrative to summarize the game that she has seriously developed for three years, is disrespectful to the work. "

In other words, for her, if only immersed in development, Activision's impact on the character "Snow Wind" will always linger, after the "Galaxy Realm Line" officially launched, there may still be many players remember the original Activision announced Samoye image, and affect the "Snow Wind" this character's first impression.

The character image of "Snow Wind" is very novel. These influences are very subtle and cannot even be solved by a lawsuit. It has already been engraved into the memory of players through various major information platforms in the medium of video. After the player unlocks Snowwind, if he says,"Have you seen this character before? "--that would be something Miyako would never accept.

In this case, she felt,"at least get an official apology from Activision for the game so she can respond positively to the player who said that. "

Moot court in the face of court summons, Activision commissioned a domestic law firm as agent. This involves a problem: if the game company is regarded as overseas, it must pass the subject certification to prove that it has the qualification to entrust.

This certification needs to be verified and notarized by the embassy. The process was to be completed within three months according to court rules, and it took six months for Activision to pass the notarization, plus the impact of the 2022 epidemic, and finally a year later when the court date was confirmed.

After the trial date was set, Miyako walked into a mock trial, unsure if it was worth it, knowing only that it meant a lot to her.

In the mock court, the "lawyer" of the Activision side logically believes that plagiarism is not established. Subsequently, under the inquiry of the plaintiff's lawyer, he chose not to admit that plagiarism was infringement, and the logic was very perfect.

The judge pointed out that the plaintiff could not prove that the trading account on the "rice painter" platform was Sail_Lin himself of ArtStation.

After the moot court ended, the lawyer and Miyako set out to fix the loopholes that appeared in the moot court: Miyako supplemented the evidence of ownership by having Sail_Lin send screenshots and documents related to the rice painter transaction using his personal QQ email marked on ArtStation.

In the face of the defendant's lawyer's argument that "tactical backpack, posture of holding gun and animal soldier are all elements of public domain," the lawyer questioned the other party by comparing another image of Sail_Lin in the same series with "Samoyed," which is very different from "Samoyed" but has the above-mentioned elements of public domain.

Even with all this preparation: they were not confident enough that the courts would characterize Activision's actions as "torts."

On September 12, 2023, Miyako posted an avatar box called Justice, which means "justice," in the Galaxy Line, which was launched in July.

At the time of the incident, Galaxy Realm Line was still under development. When the court session was received, the game was already online.

On this day, Guangzhou Plane Information Technology Co., Ltd. sued Activision Publishing Company for copyright infringement and unfair competition dispute, officially opened in Guangzhou Internet Court.

According to the information in the trial memorandum obtained by Touch, we were able to reconstruct the situation at that time.

At the trial that day, Activision admitted that it had published the relevant skin and withdrawn it, but did not recognize the nature of "plagiarism." For the claim of "apology and elimination of adverse effects" put forward by one side of the plane, Activision still insists that it has apologized on the grounds of Twitter screenshots from third parties.

At the same time, Activision also supplemented the direct labor cost of the skin package in court to prove that they spent a lot of money developing the game asset package around the image of the game involved, and since the image of the game involved was never actually officially launched in the game, they actually had no illegal income, nor did there exist intentional or malicious infringement.

At this time, the lawyer of the plane side rejects the supplementary evidence of the action side: the lawyer thinks that the skin development cost mentioned in the case is simple statistical data, and there is no material to support it, and its authenticity is doubtful; Secondly, even if the defendant's statistical data is true, this development situation cannot cover up the defendant's infringement facts; Third, the defendant's statistical data also has reference significance for the court to consider the role development cost in the plaintiff's game.

The judge did not draw a conclusion, but asked the plane to submit additional evidence after the court to prove that it was still adversely affected after making the statement.

In other words, the additional evidence from the plane would determine the direction of the case.

The current controversy mainly focuses on two points. The first is what kind of nature is this matter? Is it infringement? - The court held that more concrete evidence was needed to determine whether Activision had crossed the line of plagiarism. The second is to "eliminate the influence" of one party in the case. The court needs proof that one side of the plane has adverse effects.

In an interview after the trial, Miyako said: "It is difficult to prove this adverse impact. Galaxy Realm Line has just been launched in China. Considering that most of the audience of Activision's promotional videos are located overseas, many impacts need to be seen when the game is launched overseas. "

As of September 22, the case has not been finalized.

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