The Indirect Copyright Tort Liabilities Of Internet Service Provider

Internet service provider, short for ISP, plays an extremely important role for the normal operation and development in the network world, as intermediary agent between the internet and its cybernaut, it can't be seperated from the sending and transmission of information. Just because that, ISP is easily involved in the swirl of copyright tort disputes frequently occur on the internet. However, the indirect copyright tort on the internet is more complicated than that in the traditional law, so it's not easy to define it exactly.ISP is classified into ICP and OSP in this article, based on that, separately discussed their legal statuses, the responsibility and the feasibility of their legal liabilities, and solve the problem of their legal statuses and liability rationalities. Based on the comparison with the general tort, it elaborates the elements of auxiliary liability and vicarious liability for ISP, the former is awareness and substantial assistance, the latter is monitoring capabilities and direct economic benefits; different allocations of proof burden from the different liability attribution principles, specifically speaking, the main burden of proof under the principle of fault liability is in the plaintiff, under the fault-presumption principle, the defendant reversed the burden of proof, which means the defendant should prove its no fault or is presumed at fault and should bear the liabilities; different liability forms, including stop the tort,damages,eliminate the effects and apology in the general tort theory, and specific liability forms in the copyright area, including the court's injunctions and forbidding the cybernauts'accounts, etc. Futhermore, according to the analysis of legislation and typical cases of some representative foreign countries, we have a more clear acknowledgement of the generation,development and improvement of the indirect tort liability theory.Under the comparative analysis it shows that China's current regulations on ISP are not only too low in the level of legislation, also not systematic and predictable, this statute for a country like ours, can not meet the real needs.In view of our country's characteristics of court system and judicial system, there is much we can learn from the successful experiences in the U.S, but China, after all, is a country that led by legislation, more specific clearly defined rules shall be made in the legislation:first, ISP should be clearly defined its legal subject status, and then set different obligations according to their different characteristics, based on that, apply different liability attribution principles to different kinds of ISP, and improve the provisions on limitation of liability, in addition, clear the rights of copyright owners in cyberspace, and strengthen the provisions about right remedy.