Research On The Copyright Duty Of Care Of Internet Storage Service Provider

Indirect infringement liability of Internet Service Providers(ISPs) is one of the most important rules that heavily influence the legal order in cyberspace. Since 1998, the so-called Safe-Harbor Rule under the U.S. Digital Millennium Copyright Act has gradually become dominant in this field. However the copyright practices in China have shown that the Safe-Harbor Rule overly reduces an ISP’s duty of care as a kindhearted administrator therefore eliminates its incentive in preventing third parties’ infringement, which in turn renders online-infringement policing an impossible mission for most copyright holders. In order to remedy the defects of Safe-Harbor Rule, the courts in China choose to restrict its application by interpreting the standard of “know” and “ought to know”, and the copyright administrations require ISPs to undertake examination duty which is obviously beyond the legislative requirements. While these measures do help to suppress rampant online piracy, they also unnecessarily distort the indirect infringement liability in cyberspace.Owing to its service character and business pattern, internet storage platform becomes the worst-hit area of copyright infringement. Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law to Trial of Civil Dispute Cases of Infringement of Information Network Transmission Right, which took effect on January 1st, 2013, even formulate a special clause to conclude the circumstances under which Internet Storage Service Provider “ought to know” the user’s infringement, therefore reveals the seriousness and urgency of the copyright infringement in this area.Therefore, I take the liberty to suggest that, the Safe-Harbor Rule be abandoned. Regaining the spirit of civil law and tort law, the courts shall reestablish the reasonable duty of care of Internet Storage Service Providers, according to the necessary business order and reasonable social expectation.This thesis will be elaborated in five chapters: Chapter I analyses the background and motivation of this thesis; Chapter II studies the elementary theory of duty of care; Chapter III introduces the extraterritorial legislation of the duty of care of Internet Storage Service Providers; Chapter IV analyses the innovative verdicts related to the duty of care of Internet Storage Service Providers; Chapter V suggests taking the duty of care as the core to reestablish the Internet copyright infringement rule, and elaborates how to identify the duty of care of Internet Storage Service Providers in the judicial trial.