On Evasion Behavior Of Technical Measures

Nowadays the "free video + advertising" business model has gradually become mainstream in the network video industry.At the same time,all kinds of various software with the function of avoiding advertising come into being.Although such software are popular with users,meanwhile they have a huge negative impact on the business of major video platforms.This paper takes VST and IQIYI as a typical example,in which the former was developed by Poly Network to avoid advertising and the latter is a famous video platform.How to identify the nature of advertisement avoidance is not only about practical interests of two parties,but also about the development of the entire online video industry.The following is the outline of this thesis: Firstly,the case that “IQIYI v.Poly Network”is introduced,and focuses of its controversy are summarized.Secondly,focuses are analyzed with reference to relevant cases,legislation and practice.Finally,this thesis discusses how to apply the law to the case.The main content is divided into four parts:The first part is case introduction.Through a brief introduction of the case and the technical means adopted by both sides,and combining with the main demands of both sides,it is concluded that one of the focuses in this case is how to find out the nature of the defendant's avoidance of the advertisement before videos.From this point of view,the case is reexamined from the perspective of technical measures.The second part discusses the theory of technical measures.As a kind of precautionary self-help behavior,technical measures should always be effective,active and legitimate in order to obtain the protection of copyright law.According to the different nature,they can be divided into two types,that is,defensive and aggressive.According to the different functions,they can be divided into the following two categories: the touch control and the right protection.The legitimacy of the protection of technical measures by copyright law is that the right protection category can directly protect the exclusive right,and the touch control category can guarantee the legitimate interests of the right holder.It is clear that the protection of technical measures by copyright law not only can fully protect the interests of right holders,but also can regulate the abuses of right holders.The third part mainly analyzes the nature of circumvention behavior against technology measures.By sorting out relevant provisions of international treaties and extraterritorial laws,it is considered that the cognizance conditions of current relevant laws in our country should be refined and improved on the basis of national conditions.The legal nature of circumvention behavior is related to specific litigious rights of the parties.By exploring the relevant theories at home and abroad,the author holds that it is more reasonable to regard circumvention behavior as an illegal act.The fourth part is about the re-examination of similar cases.This thesis analyzes problems existing in the application of the present technical measures as well as the important role of the Anti-Unfair Competition Law in protecting the interests of the copyright owners in the light of relevant materials and cases.The author believes that the defendant in the typical case to avoid pre-video advertising is in full compliance with components of circumvention behavior against technological measures,the plaintiff may file a lawsuit in terms of the clause of technical measures.Moreover,similar cases also meet the requirements of the technical measure clause.