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Identify On The Duty Of Care Of The Internet Service Provider In The Online Piracy

Posted on:2016-09-21Degree:MasterType:Thesis
Country:ChinaCandidate:L WangFull Text:PDF
GTID:2296330476952374Subject:Law
Abstract/Summary:PDF Full Text Request
The duty of care is an important legal concept in Tort Law, it constitutes a direct impact on infringement and tort accountability, it reflects the legislative idea of security first and balancing freedom, we will also require a duty of care to protect network space as in physical space, the duty of care supports the tripartite balance of interests and the public function of the fulcrum among right owners, the Internet Server Provider and the public.Current the duty of care of the ISP seems to enter the errors, particularly the identify standard of the duty of care is error and confused, which seriously hindered the development the growth and development of the ISP during the new economy. In view of this, it is necessary to draw the duty of care on the provisions in the online piracy and then establish a suitable system in china.The first part of this thesis, according to the existing legislation and some cases of internet service providers’ liability, summarizing the duty of care of the ISP in the online piracy in the theoretical and practical circles in our country at present, points out the face of three dilemmas that the duty of care of the ISP in the main process of concrete determination: the chaos of the classification of ISP has affected the duty of care, the uncertainties of the system of notifications-remove existing in the matters and vagueness of the know judgment standard.The second part of this thesis, by analyzing the the network service provider attention obligation standard, through summarizing the standard of duty of care and breach of duty of care standards, analyzing whether the traditional standard of duty of care is applied to the feasibility of network infringement, it points out that the characteristics of duty of care in cyberspace, thinking the standard of duty of care of the ISP should be divided into general decision criteria and comparative judgment standard, the former helps the court to take the qualitative analysis in such cases, while the latter helps the court to take the quantitative analysis in such cases.The third part of this thesis, through analyzing the duty of care of the ISP in the judicial practice concrete in accordance with the plights of the first part,it has decided that the ISP is divided into three categories: Internet content provider, Internet access provider and Internet platform provider, based on this, thinking that we should adopt the different attitudes in accordance with the validity of the notification according to different areas and different properties of infringing copyright information, we should judge whether delete infringing information in time in accordance with the “experts” standard, according to the rule of common sense and general presumption to deduce the ISP “know” the infringement information..
Keywords/Search Tags:Online Piracy, Internet Service Provider, the Duty of Care, Determination Criterion
PDF Full Text Request
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