IP Law Daily, COPYRIGHT—N.D. Cal.: Publication of object code is a publication of the source code as well, (Sep 4, 2025)

By Matthew Hersh, J.D.

A court resolves a split in authorities in TikTok’s favor.

A Chinese software company published the underlying source code for its software when it distributed the program through a Chinese website, the federal court for San Francisco has held. The court, in allowing a copyright infringement and trade secrets misappropriation lawsuit against Chinese-owned TikTok to go to a jury, nonetheless narrowed the elements that TikTok would have to prove in its defense of the claim (Beijing Meishe Network Technology Co., Ltd. v. TikTok Inc., No. 3:23-cv-06012-SI (N.D. Cal. Sept. 2, 2025)).

The lawsuit was brought by Meishe Network Technology, a Chinese company that markets a mobile video editing application called Dunhuang. The lawsuit claims that a former Meishe employee, Xie Jing, left the company and absconded with five versions of the Dunhuang source code. Two years later, the complaint alleges, the former employee then began working at ByteDance—the Chinese owner of TikTok—and used the source code in the TikTok application. The lawsuit originally asserted claims of copyright infringement as well as federal and state law misappropriation of trade secrets, although the state law claims were eventually dropped.

Both parties filed motions for summary judgment on various aspects of their claims, leading to this opinion.

Ownership of the copyrights. The court first rejected TikTok’s defense of lack of standing. TikTok argued that Meishe had no standing because the source code in the five versions of the Dunhuang application were originally created by a predecessor company, XAT, and never transferred to Meishe. But the court rejected this argument. Critically, the court found, both XAT as well as Meishe contended that the code had been transferred from the former to the latter—and numerous transfer agreements in the record backed up that contention. TikTok’s motion on lack of ownership would therefore be denied.

Registration of the copyrights. The court also rejected TikTok’s argument over the applicability of the registration requirement—although it narrowed the elements that the social media company would have to prove in its defense. Meishe claimed that because it was a foreign company, it was exempt from the requirement that it register its software in the United States before bringing the lawsuit here. The exemption applies differently to published and unpublished works, the court noted. If the work has not been published, then it is exempt from the registration requirement if all of its authors are nonresidents. If the work has been published, on the other hand, not only do all of the authors have to be nonresidents, but it also has to have been first published outside of the United States or one of its treaty parties. Did the exemption apply here? The court gave only a partial answer.

The court first found, as a matter of law, that the work was published. The question here was whether the distribution of the object code—that is, the program itself—constituted publication of the underlying source code. The precedents on this question were contradictory, with one court holding that publication of the object code was simultaneously publication of the source code, and another court finding the other way. While the question of law “may be a close one,” the court noted, the better argument was that source code and object were essentially the same for purposes of publication. Thus, as a matter of the law the work was published.

With the work determined to have been published, the next question was: where? If it was first published in China, it would still be exempt from the registration requirement. If it was published simultaneously in China and the United States, on the other hand, then the exemption would not apply. But what if the work were first published on a Chinese app store that could be reached over the internet from the United States? The court found it “persuasive” that in that kind of scenario, the publication would be first in China for purposes of the registration requirement. Ultimately, though, the court found, there remained a question of fact whether the work first appeared only in a Chinese app store or if it simultaneously appeared in a US app store as well. A jury would have to decide the question.

Copyrightability. The court also rejected TikTok’s motion for summary judgment as to the copyrightability of the software. TikTok argued that most of the code was not protectible under the Copyright Act because of the doctrines of merger and scènes à faire—that is, that it consisted of simply rote expression that would be included in any code achieving the same purpose. But there were genuine disputes of material fact, the court found, as to “the range of possible expression that was available to plaintiff in its development of its audio-visual editing source code.” Thus, the jury would decide this issue too.

The Case is No. 3:23-cv-06012-SI.

Judge: Illston, S.

Attorneys: Charles R. Flores (Flores Law PLLC) for Beijing Meishe Network Technology Co., Ltd. Andrea Pallios Roberts (Paul Hastings LLP) for Tiktok Inc.

Companies: Beijing Meishe Network Technology Co., Ltd.; Tiktok Inc.

Cases: Copyright TechnologyInternet CaliforniaNews GCNNews