Duty Of Care Of Internet Storage Service Provider Under Copyright Law

The Duty of Care is the object criterion to determine fault.As a product of case law,it shows outstanding vitality in the tort law of the common law system and the civil law system.At present,the role played by network storage service providers has become more and more deviating from neutrality.The Safe Harbor rules have been applied less,and judges frequently apply Duty of Care requiring network storage service providers to assume more monitoring responsibility for copyright infringement.Behind the obligation expansion,more attention has been paid on security than freedom in modern society as social network has been closer due to Internet.As the network storage service providers open and control high-risk network space,their nonfeasance should be condemned.In Chinese Civil Law system,the Duty of Care by network storage service providers can be traced back to the Duty of Safety Guarantee(another translation of the Duty of Care in German law)assumed by public places administrators in Article 37 of the Tort Law,because the Duty of Care is trans-media,which can applied in the cyberspace realm.In determining whether the network storage service provider violates the Duty of Care,it should still proceed from the provisions,considering the control ability,type of work,popularity,and classification or recommendation of the pirated works to determine whether there is a subjective fault of “know” or “should know”.Wheather ISPs take reasonable measures is also one of the considerations.In the future,network storage service providers should be more active in undertaking responsibilities to protect copyright before,during and after the infringement in order to meet the society's expectations of a cautious,skilled and rational corporate entity.In addition to the introduction,this article is divided into five parts:The first part discusses the theoretical basis of network storage service providers' Duty of Care in copyright law.The Duty of Care is derived from Case Law system.Atfirst,it requires a person of particular occupation or in a special relationship to prevent damage to others.Then it developed into the attention that rational people should pay in social interaction,and became the criterion for fault determination.Then,Safe Harbor rules are applied to determine a network storage service provider's fault.However,the Safe Harbor rules with distinctive pragmatic features are incompatible with our civil law system.The Duty of Care by network storage service providers should still be based on the fault liability theory in civil law system.Grounds of its expansion can be found in Article 37 of the Tort Liability Law.The second part is a comparative study of the Duty of Care of network storage service providers in copyright infringement.Earlier in the United States,DMCA has established Duty of Care before event for network service providers.In Germany,the Supreme Court has applied Duty of Care in the intellectual property infringement cases to network service providers and established a “future-oriented review obligation” that goes beyond the Safe Harbor rules.In addition,France's "Three Strike" system also requires network storage service providers to play an active regulatory role.The third part discusses the expansion of the Duty of Care of network storage service providers in copyright infringement.The judges determining whether the network storage service provider's Duty of Care generally apply two tests:(1)whether there is a “know” or “should know”(2)whether the ISPs “take reasonable measures”.This part analyzes the controversy of more than 60 cases,and sorts out the factors which are mostly often considered to determine the fault.The fourth part discusses the criteria for determining the Duty of Care of network storage service providers in copyright infringement.From the perspective of legal dogmatics,two steps should be taken to determine the Duty of Care.The critical step is whether there is a subjective fault of "know" and "should know".If there is a subjective fault,whether ISPs take necessary measures should be considered.While "taking necessary measures" has similar meaning to the obligation to delete,"taking reasonable measures" is a factor strengthening or weakening the grounds of subjectivefaults.This section also explores the problems associated with the application of relevant factors in practice.The fifth part discusses the legislative improvement of the Duty of care of network storage service providers in copyright infringement.It is clear in legislation that to apply Duty of Care to the network storage service provider will have preventive and evaluative functions.The Duty of Care includes setting infringement warnings and convenient notice-takedown procedures beforehand,implementing filtering techniques,taking appropriate manual review while infringement happens,and tracing the source of infringing documents and improving the anti-piracy system afterwards.