Studies On Access Service Providers’ Obligation To Disclose Users’ Identity Information

As P2P technology emerges and spreads rapidly, a large number of network users detour the central server and directly use the Internet access service to swap copyright works, which breaks the mechanism for balance of interests established in the traditional network conditions, so the pattern of copyright legislation which mainly standardizes content service providers is faced with more challenges than ever before. Each and every country is trying to make corresponding adjustments in copyright legislation to resolve the legal difficulties in copyright protection arising from the emerging encroachment mode under the network environment. Both the educational circle and those involved in judicial practices approve or acquiesce the trend of legislation adjustments, i.e., applying the obligation of disclosing information about network users’identity to access service providers. However, it necessitates reflections on more legal problems to simply expand the main scope of the disclosure obligation:copyright owners’abuse of the disclosure system; access service providers’economic burdens to fulfill their disclosure obligation; network users’ privacy, freedom of speech and proper procedures among many other constitutional rights.Both legislations and judicial practices relating to the theoretical research on access service providers’disclosure of users’identity information are imperfect in many aspects. There is no due mechanism, set out in law, for the balance of interests in conflicting harmonies of interests such as network copyright protection, proper procedures, freedom of speech, etc. In2006, China issued Regulations on the Protection of Rights to Network Dissemination of Information, which is transplanted from American DMCA. For shortage of adequate understanding of the legislative background and the factors of public policies in America, many disadvantages unfolded undoubtedly in the localization of law. To protect copyright owners’ legitimate rights and interests, it is in line with the trend of each country’s network copyright legislation to expand the main subjects of disclosing users’information in proper conditions. However, disclosing users’information relates to citizens’ constitutional rights in a democratic society, namely procedural rights under proper procedures. Network copyright protection could never be used as an excuse to arbitrarily infringe on citizens’essential rights under constitutional protection, so it should be stipulated, under the disclosure system, that the involved network user is entitled to counterplead in the disclosure procedure, express their own opinions and views, and hold the opportunity to put forward evidence and viewpoints favorable to them. At the same time, privacy protection seems especially important in the modern network society, so protection of users’privacy can be laws and professional standards for assess service providers to abide by when legally running their business, because excessively extensive disclosure of users’information would undoubtedly threaten network users’rights to personal privacy, and access service providers might be put against the legal risk of breaking a contract. Moreover, access service providers are quite likely to bear unnecessary burdens caused by copyright owners’abuse of the disclosure system, which means higher legal requirements for access service providers’entrance into the network market, thus conditioning the rapid development of the Internet. Finally, access service providers would transfer disclosure costs to network users, which would increase expenses that the public pay for their access to works, influencing the efficient operation of communication for information and ideology expression and deviating from the final goal of Internet development. Under the network environment, anonymous opinion expression comprises an important part of freedom of speech. Gradual development of anonymous opinion expression under the network environment enhances the free communication of diversified, various and extensive thoughts. Network anonymity allows people to express their own thoughts freely and under no mental pressure or public opinion interference. Network environment provides for people a seemingly free and complete space for expression to avoid "Chilling Effects" formidable results from the limited freedom of speech. Absolutely on the contrary, distribution of each and every piece of electronic information that belongs to network users is recorded and stored by network operations and service centers, and could not escape away from the monitoring eyes of the network police. As a double-edged sword, network provides a platform for anonymous expression of opinions and facilitates information disclosure. Thus, improper information disclosure could not only threaten the privacy of network users, but also jeopardize the constitutional rights concerning the freedom of speech.Starting from the balance of interests, a theory in the law of knowledge property, this paper investigates the interest demands of multilateral parties unfolding from copyright works to build a relatively perfect system for the disclosure of users’ identity information by access service providers in an effort to protect the legitimate interests and rights of parties involved. Specific issues that needs to be studied are as follows:(1) define access service providers’obligation to disclose network users’ identity information and their legal basis in case of network infringement under P2P software technology;(2) comparative law studies on access service providers’ disclosure of users’identity information in different countries;(3) the disclosure obligation, in state power or individual power patterns, should meet the requirements of procedural justice;(4) copyright owners should possess procedure and entity elements when pleading for disclosure;(5) build a compensation and relief system for improper disclosures.