Search Engine Tort

This paper systematicaly studies the liability of indirect infringement which the search engine-provider assumes in in China's copyright law and tort law system, according to four cases in judicial practice. My paper also talks over the relation between the indirect infringement and joint tort of the search engine-provider. Then I propose some suggestion to improve china's indirect infringement system.There four parts in this paper besides the introduction and the conclusion.PartⅠRevelant casesI briefly introduce the details and the keystone of the four cases about the search engine in the judicial practice. And I summed up the focal point of such cases.PartⅡDirect Infringement about the search engineThis section analyses the relation between search engine and the direct infringement from the angle of difference of direct infringement and indirect infringement. On this basis I conclude that searching engine doesn't constitute direct infringement.Differentiating direct infringement and indirect infringement is the premise of inquisition tort liability of search engine. The court concludes that the action constitute direct infringement or not, then conclude that it is indirect infringement or not in the judicial practice. I classify the direct infringement liability into "Search rejected responsibility" and "temporary reproduction responsibility," "link responsibility" and "in the name of their responsibility to provide links works" on the basis of pactical cases. Apart from the controversial judgement and Busheng Case, gennerally the search engine doesn't constitute direct infringement.PartⅢFinding about Contributory Infringement on Search EngineThis section emphasizes on analysing that how the judge accurately finds the contributory infringement on search engine according to the facts and law in the cases of Baidu and Yahoo.Synthesizing legal provisions and judicial precedents, the liability principle of contributory infringement of search engines is the principle of fault liability. Helper's acts must comply with general tort elements: damage, illegacy, causal relationgship between violations and the damage and the subjective fault. Its speciality lies on the existence of the direct infringement and subjection.As soon as internet service providers who serve for search, link services break the link after they receive the creditor's notice ,they can be exempt from liability, which is known as the "safe harbour principle". "Safe harbour principle" means that, gennerally the search engine does not assume responsibility for infringement if the creditor doesn't make a notice; if search engine deletes the link after the creditor make an information, it does not constitute acts of infringement. In "Baidu case" as a credator, the plaintiff did not inform the search engine according to the ordinance. That is the reason why Baidu could win the court."Know and should know " ,that is to say, subjective fault is the key point to find that search engines help infringing. The court finds "know" according to the criterion of "it's not know without informing".So far Yahoo Case is the only one that the court finds search engine's action constitutes contributory infringement because of the subjection fault . Helpers must specifically know that direct infringement- feasors are using their products and services to tort.But only by inferring helpers' know or their general know ,we can not find it "should know".PartⅣthe Improvement of China's Contributory Infringement SystemOn the basis of PartⅢ, this section is to talk over the judicial practice and the problem in the contributory infringement system and make some adivices on improving China's contributory infringement system according to the problems.Firstly we should definite the criterion which is used to judge the network service providers's subjective fault. It is helpful to definite the criterion of "should know" to provoke network services providers to generate inner power and active duty of care. Especially under the circumstance of no "effective information" from the creditor, it is of positive significance for preventing or holding back others' obvious or repeated danger and damage.Secondly we should peel off the help act which has no communication with injury pary or common fault, making it a type of indirect infringement. Contributory infringement-feasors assume the responsibility independently for their torts, instead of the joint liability in the joint tort.