| The emergence of P2 P technology has profoundly changed the traditional information exchange and transfer mode, granting users the freedom of exchanging and sharing files without relying on a central server, which provides users with a great convenience. At the same time, the new technologies also caused a lot of legal issues, particularly the issue of copyright infringement. A large number of users downloading copyrighted works via P2 P software seriously damages the interests of the copyright owner and caused a lot of P2 P technology copyright infringement lawsuit. It not only cuases the copyright owners tremendous damage, but also poses a severe challenge to the existing copyright laws system. Therefore, it is necessary to adjust the existing copyright legal system and build up a new balance between the interests of copyright holders and technological progress. This kind of research is gaining more values in the current situation as serious piracy are taking place in our country, under the weak general awareness of copyright protection.Almost all of the contradictions of P2 P network copyright infringement case at core is that the interests of copyright owners are not well coordinated with that of Internet users’, resulting in the battle copyright owner unleashed to fight for economic benefits of copyright works. The arbitrary of subject and the breadth of subject matter in the P2 P technology environment leads to the result that copyright owner can not claim the rights to a number of individual users directly, so they have been targeting the P2 P network service providers. While many countries’ practical experience has shown that investigating P2 P network ISP’s copyright infringement is the best way to solve the problem of P2 P infringement.But judicial practice at home and abroad have proved that these new technologies will not disappear under the suppresssion of regulations and case law precedents. Blindly trying to obstruct and block the development of P2 P software does not solve the problem. The dissemination of technology will only make spread far beyond countries. Thus, relying solely on litigation remedies are not wise. The ultimate and the only solution is to find out in advance the right business model and achieve win-win situation through cooperation among different industries.One important feature of P2 P that is to make the Internet "decentralized" and really put the power back to the users. As P2 P technology allows users to access network resources and sharing resources with great convenience, it has been widely used in our country and around the world. In the Internet era, the United States is far ahead both in technology development and legal protection in the world. In order to adapt to the rapid development of technology, the United States copyright law system opens up a new level in the digital age. Adhering to balance the interests in this paper, this essay is divided into four chapters with primary use of case studies and comparative analysis between the judgment of three classic cases in United States copyright law system and related cases China, through which this essay conducted comparative study of common tort system and indirect foreign tort system and put forward some ideas on establishing a model that balances the interests of all parties in our current situation.In the the first chapter, the writer introduces the operation principle and the development process of P2 P technology and subject that can be attributable in P2 P infringement cases. Then the writer analyzes the the main legal basis why network service providers should be held for attribution. Finally, through the analysis of the impact the emergence of P2 P technology has on the traditional system of copyright and copyright infringement caused by P2 P technology in China, the writer pointed out the lack of indirect infringement in our copyright legislation. And by comparing with the joint tort liability, the writer proposed the necessity of introducing indirect infringement liability. It is also pointed out in the last chapter that while blindly chasing the responsibility of the service provider network, we should also pay attention to the balance between copyright protection and technological innovation, and to avoid giving the network service provider too heavy responsibility.In the second chapter, through legislation and changes in US copyright law, the writer deeply analyzes the basic spirit of the legislation in United States copyright law and the important public purpose hidden behind. The advancement of the US Copyright Law after three revisions is that the interests of copyright ownersis not the first consideration of the American government in the formulation of copyright policy, but the overall interests of the industry from the promotion of cultural and economic development of the country. In other words, US Copyright Law lays its focus on the protection and promotion of the initiative in the creation, while allowing the public to gain access to the inventors’ outcome of the work after a certain time limit. Then by combining the relevant American jurisprudence, the writer analyzes on how US courts built a "substantial noninfringing uses" in the "Sony case", and the "contributory infringement" and "vicarious liability" rule in "Napster case" and "Grokster case", and its recognized standards and elements. These three network infringement cases in the United States copyright law area is of great significance and have acted as references in the subsequent cases and national legislation. Finally, the writer gives a brief summary and points out the revelation of these three important rules of indirect infringement of US copyright law comparing with the current system in our country whose core principles of imputation is still shared responsibility.The third chapter describes the current situation of China’s legislative and judicial indirect copyright infringement. First, the writer introduced China’s existing legal framework for P2 P infringement issues and focuses on interpretation of the State Council, "Regulation on Protection of the Right to Network Dissemination of Information", as well as the introduction of the new Supreme People’s Court in the last two years, "Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks" and the Supreme People’s Court "Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Cases involving Civil Disputes over Infringements upon Personal Rights and Interests through Information Networks" in terms of the provisions of the civil tort liability disputes concerning P2 P network service providers.Legislative momentum in the field of network infringement and the new provisions of the new emerging areas has developed rapidly in recent years, but the indirect tort system is not yet fully established. Associated norms only scattered in "Civil Law", "Copyright Law", "Regulation on Protection of the Right to Network Dissemination of Information" and the Supreme Court ’s relevant judicial interpretations. In addition, the country ’s first case of P2 P software "Busheng v. Feixing network", the Court also use contributory infringement in "Civil Law" and relevent regulations in "Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Copyright Disputes over Computer Network" in an attempt to graft the common infringement in American common law with contributory infringement in our civil law. Although the judgment reflects the exploration of China’s judicial system’s attempt to establish indirect copyright liability, but there is no tradition of case law in our country, so we can not find the legal basis directly from the jurisprudence. Furthermore, bar 22 and 23 in the "Regulation on Protection of the Right to Network Dissemination of Information" which has been widely discussed in recent years, are just imitations of the establishment of indirect responsibility DMCA exemption system in United States, and are not separate indirect liability provisions. So the simple use of such indirect liability system is apparently unable to meet the needs of China’s copyright industry development stage, which also highlights the construction of reasonableness and necessity of indirect liability regime in legislation.Due to the fact that P2 P technology is still in its infancy, the number of cases of domestic network P2 P software infringement is still relatively small in judicial prac-tice. And there are a few cases of copyright infringement the court sentenced were featured by deliberate link services provided by the network service provider on the nature(such as the "Kuro case" and the "POCO case" in the essay). The defendant is not purely a shared software provider, but a service provider which provides link services. In other words, our current P2 P software infringement case does not exist in the true sense. So, if the software provider of P2 P software infringement use the illegal functions such as advertising, how should the Court deal with it when the copyright owner take the P2 P software providers to court of copyright infringement because its users take advantage of the software and engage in illegal activities, the same as "Grokster case", the history of the trial is still a blank in our country.The fourth chapter discusses the countermeasures that can be taken when facing network service provider infringement caused by P2 P technology from the legislative and social levels. This chapter first undertake contents of Chapter III and summarizes the existing legal and judicial interpretation of the network service provider liability in the overall framework, and make a few suggestions current legislative model, in addition to the introduction of indirect infringement theory mentioned above the writer suggests we should also include further clarity of the subjective aspects of recognized standards in Internet service providers and the introduction of vicarious liability. However, relying solely on afterwards legal regulation can not solve all the problems, so in the end of the article the writer also pointed out from the technical, institutional, and moral level that it is necessary to establish a clear indirect liability principle, improve the matching of the surrounding system from all aspects and reduce costs of infringement conducted by different subjects under P2 P technology environmental to make the law to keep pace with technological developments in the Internet age.A lot of copying and plagiarism is already existed on the network, which has thrown copyright protection into a panic. As the latest development of Internet technology, P2 P technology is fueling the emergence of copyright infringement. China and most countries have been insisting on technological neutrality legislation, indicating that the purpose of the legislation is to find a balance between copyright protection and innovation support. The tensions between these two values is the core value of this essay. |
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