"Free Software" Infringement Behavior Research

The development of the internet puts forward new requirements for our civil legislation research. Theinfringement act of "freeware" provides us with a new perspective on the study of infringement act. Afterthe event of Tencent and360, how to prevent the netizens from infringing in the process of using such"freeware" becomes an urgent problem."Freeware" infringement can be divided into three small problemsto solve. The first part defines "freeware" as the networking share software which is free to download. Thenit is divided into network share-based freeware and business-based freeware and the latter is the study ofthis thesis. Then, combining with the event of Tencent and360,"freeware" infringement is defined as"freeware" provider infringes the netizens’ rights for the for profit-making purposes which should bear civilliability."Freeware" infringement acts have the characteristics of universality, continuity, concealment andsmallness.The first part defines "freeware" as the networking share software which is free to download. Then itis divided into network share-based freeware and business-based freeware and the latter is the study of thisthesis. Then, combining with the event of Tencent and360,"freeware" infringement is defined as"freeware" provider infringes the netizens’ rights for the for profit-making purposes which should bear civilliability."Freeware" infringement acts have the characteristics of universality, continuity, concealment andsmallness. The netizens’ civil rights will be damaged more unless the "freeware" infringement act isregulated. Finally, the author’s discusses that the regulation of "freeware" infringement is beneficial to thenetizens to maintain their own rights and interests. Enhancing the software provider for its own constraintsis also beneficial to build a fair and reasonable network order.The second part firstly discusses that the subjective elements of "freeware" infringement act is fault,which means that software providers should be punished only on the condition they violate the netizens’rights in the basis of fault, and the principle of fault presumption can also be applied. Then theinfringements of netizens’ privacy, property and consumer rights by "freeware" are discussed. The last isthe way of "freeware" infringement. The providers obtain the netizens’ information and control part of theircomputers by covert code and they also avoid their responsibilities to increase the netizens’ burden through the extremely unequal "Software License Agreement".The third part discusses that the "freeware" infringement is caused by the unclearness of the nature of"freeware", the cultural factors and the blankness of the law and practice.The fourth part is the ponders on the regulation of "freeware". Firstly, the nature of "freeware" isdefined clearly as a kind of software which is distinguished from intellectual property license. The secondis to discuss how to protect the netizens’ rights from the infringement of the providers under "Tort LiabilityLaw" and "Contract Law". Thirdly, the characteristic of smallness determines that we can use the smalllawsuit in "Civil Procedure Law" to solve and the foreign small lawsuit mode of collective human rightscan be used if the scope of infringement is wide.Fourthly, in order to protect the netizens’ rights and interests better, to make their rights protectionvalid, we should strengthen the lawmaking of information assets and protection and complete the current"Contract Law","Tort Liability Law" and other relevant laws. In the end, we should protect the most of thenetwork share-based softwares while protecting the netizens’ rights and strengthening the providers’responsibility which will be more beneficial to protect the netizens’ internet benefits.