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The Safe Harbor Rules

Posted on:2012-03-24Degree:MasterType:Thesis
Country:ChinaCandidate:T LiFull Text:PDF
GTID:2216330338959315Subject:Law
Abstract/Summary:PDF Full Text Request
The establishment of"Safe Harbor Rules", which has become a milestone in the internet legal system of China, is of vital importance in developing a sound internet business and balancing economic interest between copyrighters and the rising business. However, a misunderstanding of"Safe Harbor Rules"makes its fundamental purpose can not be achieved. In order to properly understand the"Safe Harbor Rules", this paper systematically studies the liability of it in the copyright infringement committed by the Video Sharing Website according to typical cases in judicial practice. Also, my paper deeply investigates the substance of the"Safe Harbor Rules"based on its history and the comparation with U.S DMCA. Then I propose some suggestion to improve China's"Safe Harbor Rules".There are four parts in this paper besides the introduction and the conclusion.PartⅠThe details and focal points of the case. In this part, the details and the keystone of one typical case about the copyright infringement committed by the Video Sharing Website is introduced and the focal points of this case are summed up.PartⅡThe origin and contents of the"Safe Harbor Rules". This part emphasizes on the emergence and development of the"Safe Harbor Rules"and on this basis"Regulations"Article 22 about our providers for information storage space are introduced on the whole through the comparation with American"Safe Harbor Rules".PartⅢThe application of the"Safe Harbor Rules"in the copyright infringement committed by the Video Sharing Website. In this part the"Regulations"Article 22 is divided into subjective and objective elements which are fully elaborated. And some misunderstanding about it is explained. The definitions of"changing upload work","gaining direct economic benefits"and"qualified notification"in the objective element have been much debated. And my own understandings about these phrases are summarized in this paper by analyzing and comparing the views of many different scholars and referees of related cases."Change"refers to essentially processing the expression of upload works, which affects network users recognizing and using the upload information. It means"changing upload work"are those modifications enough to make cyber citizen misjudge the author and source of the works or misunderstand the essence of them. Meanwhile,"gaining direct economic benefits"mainly lies in whether network service provider won interests connecting inevitably with torts and the notifications which do not wholly meet"Regulations"Article 14 are not qualified ones, which is the same with DMCA except for the detailed explained of the unqualified notification in USA. The subjective factor means"don't know and without reasonable grounds should to know". It is divided into the researches of"knowing"and"should know", of which the actual connotation is consistent with DMCA."knowing"is affirmed simply through the acknowledgement of network service providers or the sending of the notifications of torts while"should know"is identified by Red Flag Standard because of its complication. Red Flag Standard demands network service providers undertake reasonable duty of care rather than duty of investigation. This paper redefines"reasonable duty of care"and analyses"should know"of Video Sharing Website based on the case of "xin chuan accusing potato net".PartⅣThe improvement of the"Safe Harbor Rules". In this part, the legal problems of the"Safe Harbor Rules"in judicial practice and in the legal provisions are pointed out on the basis of the analysis of the third part. Some suggestions are proposed. One is to detail the rules by describing the meaning of"change""direct"and so on in"Regulations"Article 22, materializing all the fuzzy concepts. The other is to make an addition to the rules by explicit definition of the legal consequence of unqualified notification and the reasonable duty of care of Video Sharing Website operators.
Keywords/Search Tags:Safe Harbor Rules, Video Sharing Website, Reasonable Duty of Care
PDF Full Text Request
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