Discussion On Link Service Provider Infringement

In recent years,the emergence of new types of linking has led to the blurring of the boundaries between the commercial features of the link services and content services.There has been heated debate over the question that if the link service providers who have provided unauthorized link service directly infringe the right of information network dissemination.The first part of this thesis aims to introduce the theoretical impact of the new types of links on the current tort liability system.The responsibility of individual tort,abetting tort as well as joint tort of the link service providers is the embodiment of the principle of responsibility.In help tort cases,unless there are sufficient theoretical basis,link service providers will not assume responsibility.Help infringement means the parties should have common intentions.In fact,they have common intentions for the expansion damages only if they meet the “notice-unload” condition while link service providers fail to fulfill their obligations.And the responsibility of link service providers is based on political consideration when they have known or should know the facts.Deep linking and framed linking are not the same concept.In addition,there is a new form of linking.The linking website cooperated with the linked website when creating a linked page,which is specifically designed for users to jump in from the linking website page.This thesis defines it as cooperation linking.Although the above types of links form still use linking technology,because of the screening,recommendation or presentation of the content of the work,its operation mode has approached to content providing service.The second part of this thesis summarizes the judicial dilemma of new types of links cases based on case data.The different opinions in the judicial decision mainly focus on whether the chain-linking behavior of the link service providers directly constitutes the information network dissemination behavior.The courts have different opinions about this question in both objective technical standards and subjective perception standards.Therefore in judicial practice,there have been opposing judgments.The third part of this thesis is intended to clarify the elements of the criterion of the information networks dissemination.The server standard has been negated by the current law while the user perception standard is subjective.The actual presentation standard is comparatively referential.Based on the actual presentation standard theory,the followingthree elements could constitute the judgement criterion of information network communication behavior: First,there is a source of information dissemination which has completely and directly presented the content.The proprietor of the dissemination platform should be presumed to be the actor.Second,the behavior should enable the public to have access to the content at an individual’s chosen time and place,forming an interactive communication.Finally,the actor should have the core intentions to dissemination the content.The fourth part of this thesis analyzes the tort liability of the link service provider of three types.Deep linking does not constitute the information network communication behavior.The right holder must pursue the liability of the link service provider according to the rules of helping infringement.The link service screening and recommendation of the link service provider will increase its duty of care.Framed linking behavior directly constitutes information network dissemination,and right holders can pursue their direct tort liability.The cooperation linking is the result of the cooperation between the link service provider and linked website.If the linked website which has not been authorized to transfer the content sets the inner page and the cooperation link page to display the content in the same time,its behavior could be regarded as authorization.This will put the interests of the copyright holders in the air.The linked website shall be jointly liability for its helping tort act with the linking website.In addition,when the joint meaning contact cannot be demonstrated based on the characteristics of the cooperation linked page,the deep linking theory could be applied to the case.