Vicarious Liability Of Internet Service Providers

With the rapid development of Internet technology, the number of Internet service providers has been increasing. ISP provided a vital network services for the normal operation of the Internet. Meanwhile, users of these services will be to facilitate certain activities engaged in violations。When users upload, store and transmit information including infringing content through the server, whether or not the Internet service provider should be responsible for the acts of infringement is a very controversial issue。On one hand, we should protect the rights related to human rights。On the other hand, it is not reasonable that impede the development of network technology because of excessive damage to the legitimate interests of Internet service providers .So there is a problem how to achieve a balance of interests through legal means.About Indirect infringement on the responsibility of network service providers, whether theory study or the legislative process, there is a certain amount of lag in China. Although a series of legislative activity, internet service providers'responsibility for the indirect infringement has been held by the relevant provisions of the civil law tradition that is too broad and lacks pertinence. In contrast, Europe and the United States and other developed countries had created a relatively mature legal theory and judicial technology in Legal aspects of the Internet after years of accumulation which can be learned and used for reference。Among these, taking the tort liability on the Internet service providers through vicarious liability has brought a new idea. This is a link, but also a larger difference between the form of vicarious liability and general civil law; In particular, it provides a means and new ideas to determine ISP's responsibility and protect their rights in the network environment.This article attempts to study the vicarious liability of the United States Copyright Act and to explore the applicability of the vicarious liability on Internet service providers.The first section introduced traditional civil responsibility; Thesecond section analyzed the elements of vicarious liability in the United States copyright Act through case study and "Shapiro test" as well as how to identify the core elements of the test: "control power " and "direct interest". It concluded that should make"actual control" and "determine interest" as the criteria for assessment.The third section systematically described that what type of responsibility that the Internet service providers should bear for the violations and the applicability of the vicarious liability of internet service providers and how to identify "Shapiro test" in the network environment. Through legal analysis it verified the application value of the vicarious liability of Internet service providers. Meanwhile it noted that a variety of standards of vicarious liability existed in judicial practice and made the analysis of these standards through the number of cases study.finally, it gave brief introduction of the state of legislation about ISP's indirect infringement responsibility in china and analyzed the shortcomings of the related law and put forward its own legislative proposals..