[Case: King v. Waves] Plaintiff game creator claims to have spent countless hours and millions of dollars creating the most compelling, fun, and successful social and mobile video games in the world. The defendant is also a game creator. Plaintiff alleges that defendant blatantly cloned two of its most popular games.
It filed a copyright infringement lawsuit seeking to halt the infringement and disgorge any profits defendant gleaned from it.
Defendants filed a motion on forum non conveniens grounds.
Question(s) For Expert Witness
- 1. Can a Chinese court hear a patent infringement case in which the infringement occurred outside of China?
- 2. Can a proceeding be conducted fairly in China?
Expert Witness Response
I have reviewed the declarations of plaintiff’s experts filed in opposition to defendants’ motion. I disagree with many of their conclusions regarding the practice in mainland China. The mainland China courts are practically available as an alternative forum for resolving the copyright dispute.
It is not true that Chinese courts are unable to accept disputes where alleged infringement occurs outside of mainland China. Plaintiff’s experts repeatedly hold the opinions that Chinese courts are highly unlikely to accept a copyright infringement lawsuit where the infringing acts occur overseas. In fact, Chinese courts do accept copyright infringement lawsuits where the infringing acts happen overseas. The Provisions of the Supreme People’s Court (SPC) on Certain Issues Related to the Application of Law in the Trial of Civil Cases Involving Disputes over Infringement of the Right of Dissemination through Information Networks (effective January 1, 2013) (hereinafter referred to as “Networks Dissemination Provisions”) even provides statutory guidance on how lower courts should deal with that situation. It is broadly well known and acknowledged that local Chinese courts at different levels always comply with SPC’s interpretations, regulations and circulars.
The acts of designing, building and operating the disputed game were or are conducted by a Beijing subsidiary of the defendant. Therefore, I am of the opinion that given a lawfully established Chinese company has conducted the alleged infringing acts in the Mainland China, the places in the Mainland China will, according to Chinese laws, be a preferred jurisdiction to hear the copyright infringement lawsuit. Even if these “infringing” acts are carried out in places out of the Mainland China, Chinese courts may still be empowered to accept and try these kinds of copyright infringement cases, as noted in the above provisions under the Networks Dissemination Provisions. Accordingly, a competent Chinese court can make a decision ordering the Beijing company to cease and desist from carrying out the “infringing” acts, should the “infringement” be found. Such a ruling will with no doubt be enforceable in the Mainland China.
It is not clear why a judgment in this case would need to be enforced in the US since the allegedly infringing party is located in Mainland China. Nonetheless, Chinese judgments can be recognized and enforced not only outside the Mainland China but in the United States.
Further, both theoretically and practically, there is no evidence showing that Chinese legal system is unfair. According to the Civil Procedure Law, foreign nationals, stateless persons, foreign enterprises and organizations that bring suits or enter appearance in the courts shall have the same litigation rights and obligations as citizens, legal persons and other organizations of the Mainland China.