Is Chen Shoufu China’s Dmitri Sklyarov?

by on November 30, 2007 · 12 comments

Techdirt points to this story on a Chinese programmer who’s been arrested for developing an add-on to instant messaging software. I should state my biases up front: if using unauthorized software is a crime, they should come and get me, because I use Adium (and before that Fire and Gerry’s ICQ) for my instant messaging needs. It sounds like this guy’s product is the Chinese version of Adium, which means that in this respect China’s copyright laws are even more screwed up the those in the United States.

I am, however, a little bit puzzled about the exact detail of what he did and what laws he’s accused of breaking. From the article:

China has the world’s second-biggest Internet market after the U.S., with more than 160 million users, and it is a thriving market for such add-ons. Coral QQ has about 40.6 million users, according to Chinese computer-science publication Pchome.

Tencent first complained to Mr. Chen in late 2002, saying Coral QQ violated its copyright and warning him to stop distributing it. He did. Mr. Chen then devised a noninvasive “patch” on the program — a separate piece of software — that would run concurrently with QQ on a user’s computer and modify it as the two went humming along. In 2003, he resumed offering Coral QQ.

In 2006, as it became increasingly apparent that Coral QQ was only growing in popularity, Tencent filed a 500,000 yuan ($68,000) lawsuit alleging copyright infringement against Mr. Chen and won a judgment for 100,000 yuan, which Mr. Chen paid. In early August, Tencent complained to the police in Shenzhen, where it has its headquarters, and on Aug. 16 Mr. Chen was detained. Tencent said Mr. Chen was “making illegal profits and infringing on Tencent’s copyright.”

I’m not sure I’m reading this right, but it sounds like at one point he was distributing a modified version of the QQ client. That’s a plain case of copyright infringement and so Tencent was well within their rights to object to that. However, it sounds like more recently he’s been writing independently-created code that modifies the QQ application. While the exact legal arguments would depend on the details of what it’s doing, this would generally not be considered copyright infringement in the United States.

The Sklyarov arrest did a great deal of good in terms of highlighting the problems with the DMCA and galvanizing the geek community. I engaged in my first anti-DMCA activism the week after his arrest, when I attended a protest at the Minneapolis courthouse. If Shoufu’s actions are indeed as innocuous as Sklyarov’s were, this arrest should increase awareness in China of the threats that overly-restrictive copyright law can pose to programmers’ freedom.

  • Carme

    Hi Tim,

    I posted a comment on Techdirt that would be just as relevant here:

    http://techdirt.com/article.php?sid=20071130/010429#c165

    In essence, I think it’s not only copyright infringement but the epitome of copyright infringement.

  • Carme

    Hi Tim,

    I posted a comment on Techdirt that would be just as relevant here:

    http://techdirt.com/article.php?sid=20071130/01…>

    In essence, I think it’s not only copyright infringement but the epitome of copyright infringement.

  • http://www.techliberation.com/ Tim Lee

    Carme, you said:

    The software’s license has without a doubt a section forbidding changes to the program, so once the “add-on” is applied the license is void and the copy is infringing whether it came from the original site or from someone else.

    Carme, that sounds like a violation of a shrink-wrap license. I agree with EFF that such violations are issues of contract, not copyright, law. And in any event, the license is a contract between QQ and its users. If Chen’s customers break their licenses, that’s an issue between the customer and QQ. I don’t see how it justifies throwing Chen in jail.

  • http://www.techliberation.com/ Tim Lee

    Carme, you said:

    The software’s license has without a doubt a section forbidding changes to the program, so once the “add-on” is applied the license is void and the copy is infringing whether it came from the original site or from someone else.

    Carme, that sounds like a violation of a shrink-wrap license. I agree with EFF that such violations are issues of contract, not copyright, law. And in any event, the license is a contract between QQ and its users. If Chen’s customers break their licenses, that’s an issue between the customer and QQ. I don’t see how it justifies throwing Chen in jail.

  • Carme

    “such violations are issues of contract, not copyright, law”.

    Of course copyright law shouldn’t deal with the details of such contracts, but it can’t be taken out of the equation because it is the only incentive the user of a program has to accept any contract at all.

    The details of copyright law matter when it comes to the question of whether the user actually has to accept the contract. If the use falls under an exception like fair use or the first sale doctrine, the use is non-infringing anyway so the details of the contract don’t matter. A use that doesn’t fall under any exception must obey the contract because otherwise it would be infringing.

    The EFF page you point to doesn’t claim that breaching a EULA is not a copyright issue, but just that EULAs must not trump the first sale doctrine, to which I wholeheartedly agree. If selling a work is not an infringing use, you don’t need any license and are not bound by any contract.

    As for pointing the guilt, Chen is distributing software that helps users of the original product breach its license and clearly has no non-infringing uses. This is considered infringement under a reasonable copyright law – I don’t know the Chinese law but I think it is under U.S. law.

    In any case, let’s look at the big picture: don’t you think in this case copyright law is giving the publisher a clear incentive to create software that is sponsored by advertising? And that this software might not be created if not for copyright law, that prevents users from turning off these advertisements? We don’t have to agree that copyright is needed at all, but if it is, this seems like a clear case of the problem it is trying to solve.

  • Carme

    “such violations are issues of contract, not copyright, law”.

    Of course copyright law shouldn’t deal with the details of such contracts, but it can’t be taken out of the equation because it is the only incentive the user of a program has to accept any contract at all.

    The details of copyright law matter when it comes to the question of whether the user actually has to accept the contract. If the use falls under an exception like fair use or the first sale doctrine, the use is non-infringing anyway so the details of the contract don’t matter. A use that doesn’t fall under any exception must obey the contract because otherwise it would be infringing.

    The EFF page you point to doesn’t claim that breaching a EULA is not a copyright issue, but just that EULAs must not trump the first sale doctrine, to which I wholeheartedly agree. If selling a work is not an infringing use, you don’t need any license and are not bound by any contract.

    As for pointing the guilt, Chen is distributing software that helps users of the original product breach its license and clearly has no non-infringing uses. This is considered infringement under a reasonable copyright law – I don’t know the Chinese law but I think it is under U.S. law.

    In any case, let’s look at the big picture: don’t you think in this case copyright law is giving the publisher a clear incentive to create software that is sponsored by advertising? And that this software might not be created if not for copyright law, that prevents users from turning off these advertisements? We don’t have to agree that copyright is needed at all, but if it is, this seems like a clear case of the problem it is trying to solve.

  • http://linuxworld.com/community/ Don Marti

    If the user is infringing copyright by applying the patch, then wouldn’t the author of the patch be inducing infringement, or perpetrating vicarious or contributory infringement?

    There’s always Pidgin.

  • http://linuxworld.com/community/ Don Marti

    If the user is infringing copyright by applying the patch, then wouldn’t the author of the patch be inducing infringement, or perpetrating vicarious or contributory infringement?

    There’s always Pidgin.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    If the use falls under an exception like fair use or the first sale doctrine, the use is non-infringing anyway so the details of the contract don’t matter.

    Would that it were so, but Blizzard v. bnetD (certainly one of the most disastrous and poorly reasoned decisions in recent years.) has probably changed that-the question is for how long…

  • http://enigmafoundry.wordpress.com eee_eff

    If the use falls under an exception like fair use or the first sale doctrine, the use is non-infringing anyway so the details of the contract don’t matter.

    Would that it were so, but Blizzard v. bnetD (certainly one of the most disastrous and poorly reasoned decisions in recent years.) has probably changed that-the question is for how long…

  • http://blog.actonline.org Mark Blafkin

    Umm…you guys are kidding, right?

    We’re talking about China here, and you’re debating this as if EFF’s analysis of EULAs and “reasonable copyright law” are in any way relevant to the situation. It’s an interesting discussion and Carme and Tim make good points (with more software development being supported by advertising, this could be an important issue), but let’s be clear about the actual case being discussed.

    As the NYT noted recently, China supposedly has Free Speech rights too, but that hasn’t stopped them from simply calling it “providing state secrets to foreign entities.”

    Given the actual situation in China, I doubt very seriously that “this arrest should increase awareness in China of the threats that overly-restrictive copyright law can pose to programmers’ freedom.”

    To paraphrase the famous line from Chinatown…”Forget it Tim, It’s China. It’s China.”

  • http://blog.actonline.org Mark Blafkin

    Umm…you guys are kidding, right?

    We’re talking about China here, and you’re debating this as if EFF’s analysis of EULAs and “reasonable copyright law” are in any way relevant to the situation. It’s an interesting discussion and Carme and Tim make good points (with more software development being supported by advertising, this could be an important issue), but let’s be clear about the actual case being discussed.

    As the NYT noted recently, China supposedly has Free Speech rights too, but that hasn’t stopped them from simply calling it “providing state secrets to foreign entities.”

    Given the actual situation in China, I doubt very seriously that “this arrest should increase awareness in China of the threats that overly-restrictive copyright law can pose to programmers’ freedom.”

    To paraphrase the famous line from Chinatown…”Forget it Tim, It’s China. It’s China.”

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