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The Identification And Limitation Of Copyright Infringement Liability Of The Internet Service Provider

Posted on:2014-01-20Degree:MasterType:Thesis
Country:ChinaCandidate:N QianFull Text:PDF
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Throughout the world, the Internet has been to penetrate into almost every corner.Many aspects of people’s life, such as communication, entertainment and shopping,work and study, must rely heavily on the Internet. The Internet is profoundlyaffecting or changing everyone’s lifestyle and habits. The Internet in China is also ina stage of rapid development. On January15,2013in Beijing, the China InternetNetwork Information Center (CNNIC) released the31th Statistical Report on InternetDevelopment in China. The report shows that China has had564million Internetusers and the Internet penetration rate has reached42.1%by the end of December2012, and the number is slowly growing. As an essential part of our social life, theInternet offers convenient services for us. But at the same time, it inevitably may beused as tools to hurt us. The actions that intentionally or unintentionally damageothers will be adjusted by the legal norms in certain circumstances. As the realitysocial life, there are also the many parties of different interests in the Internet virtualworld. From the legal perspective, there are three types of stakeholders, which areInternet service providers, network users, and rights holders. As the Internettechnology is ever-changing, how to balance the interests of the three parties is animportant issue that the academics, judges and other legal personnel has beenstudying.In this paper, I mainly analyze and discuss the identification and limitation of theInternet service provider copyright violations. Firstly the definition of the legal statusof the Internet service provider combining legal provisions and practice, including theemerging Internet trading platform service providers. Secondly, the analysis of thefour elements of the tort, that is fault, tort acts, damaging consequences and causalrelationship. Finally, restrictions on tort liability from the principle of the "safeharbor" in the U.S. law corroborated with the case. This paper mainly includes thefollowing three parts: The first part defines the legal status of the Internet service provider from thepoint of tort subject. There is a close relationship between the type of Internet serviceproviders and their tort liability. The Internet service provider mainly divided intotwo types, which are Internet content service provider and Internet technology serviceprovider. Based on their technical characteristics in the realistic network environment,this paper studies the providers with the legal provisions. The responsibility of thetort subject such as the Internet trading platform provider "Taobao" is the rising legalissues in the real dispute this article. The points of view are following.The second part is the composing elements of tort liability which include thefault, the injurious act, the damages and the causal relations. This part main analyzethe responsibility of the Internet service providers responsibility including directinfringement and indirect infringement."Cloud computing" is the latest achievementsof the development of Internet technology. Many large Internet companies such as"Google" and "Yahoo" have begun to use this technology to arrange its developmentstrategy. This part also studies the composing elements of tort of the service providersusing the new technology "cloud computing".The third part is the restrications of the tort liability of Internet service providers.This part discusses the "safe harbor" rules and the "red flag" standard in the US andtalks about two latest cases using this two stanards.The Internet service provider is an important support for the development of theInternet. It grasps and researches the new technology, playing a leading role in thefuture of the network. As people have been putting forward a new demand on theInternet, a variety of network technologies and business models came into being, suchas the network trading platform "Taobao" and the cloud computing technology-basednetwork service providers. In addition to the Internet service provider in thetraditional network environment, this paper also analysis and research on the subjectsthat appear in the new network environment. In addition, the Supreme People’sCourt’s rules will be executed since January1,2013, which is on the InformationNetwork Transmission Right civil infringement disputes applying the provisions ofthe Law.(hereinafter referred to as the" Information Network Transmission Rightjudicial interpretation ") This judicial interpretation makes the relevant provisions referring to many issues in the judicial practice. Many parts in the paper quote certainprovisions of this interpretation to elaborate the matter. The typical cases at home andabroad are the important material to study the legal issues. Therefore, this paper citedmany case, starting from the specific situation, to investigate the problems that thecase itself reflected.This paper attempts to do the shallow analysis about the tort liability of Internetservice providers in the above aspects. Although the idea is immature, I hope tocontribute a little to this work. What’s the most important, I hope that under theperfection law the Internet industry develop more strong and provide us a morehealthy network environment.
Keywords/Search Tags:Internet service provider, the standard of fault, restrictions of liability, theprinciple of "safe harbor"
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