A Research On ISPs' Liabilities In China And Foreign Countries

How to determine the liability of Internet Service Providers has come to one of the most hot argues in the Internet Law area. Under what circumstances should ISPs be liable when the copyrighted material is transmitted or made available depends on many factors. While ISPs are develeoping fast, they are suffering kinds of law suits meantime.More often, ISPs might be held second-liablities for copyright infringment while the direct infringment by its end-users. Given the vast information by cyberspace today, it would be impossible to expect ISPs to act like a policeman. Therefore, to make a balance between protecting copyright holders and shielding ISPs from responsibilities, many countries have developed their own characteristic ISP legislation and theories.There are no universal theories among the world because every country has its own legal tradition and regime. Nonetheless, a overall view of cases of US, EU, and other countries show that courts generally consider the following factors: ISP's knowledge of infringement conducted by its end-users; its intent to infringe; whether material contribution to the infringment; ability and rights to control the infringment; whether direct financial benefits arising from the infringement.Though the U.S. enacted DMCA in 1998, EU passed E-commerce Directive in 2000 and China enacted Information Network Regulation in 2006, there still exsits conflicting oppions and uncertainty in practice. Like how to pefect a take-down notice; how to determine the knowledge of an ISP; how to decode a red flag test and how to settle online piracy problems. Besides, a wide use of fingerprint filting technology and adoption of Graded Response with due process surely will satisfy both the right holders and the public. Then promote the delevelopment of the internet at the same time.