Determination Of Criminal Liability For Infringement Of Copyright By Internet Service Provider

As the link of internet information transmission,internet service provider are the important promoters for the development of cyberspace technology.The current legal norms in China do not clarify the connotation and classification of internet service provider,but through the interpretation of effective laws,administrative regulations or judicial interpretation,it can be seen that the definition of Internet service provider should be understood in a broad sense,including not only network content service providers,but also other networks providing such functions as access,transmission,search,information storage,file sharing,etc.Copyright infringement is more prevalent in the "Internet+" era.The dissemination of information network makes the Internet service providers infringe copyright crime with the characteristics of being broad in subject,novel in behavior,complicated in plot,and risk in consequence.Whether the Internet service provider are required to bear criminal liability for infringement of copyright crimes and whether the neutral help acts are constructed in the theoretical and judicial circles.There are still different opinions on assistant offenders,and this article holds a positive position.The criminal liability of internet service provider for infringement of copyright does not only refer to the determination of the crime of infringement of copyright stipulated in Chapter ? of the Criminal Law.Since the infringement of copyright by internet service provider through the dissemination of information involves the management of network public order,its criminal liability should also fully consider the identification and application of the relevant charges in Chapter ? of the Criminal Law.Prior to the promulgation of the Criminal Law Amendment(?),the liability of internet service provider for copyright infringement was mainly based on the crime of copyright infringement,the crime of selling infringing copies and the theory of accomplice model.After the promulgation of the Criminal Law Amendment(?),the newly added crimes related to copyright infringement by internet service provider mainly include the refusal to perform the crime of information network security management obligation and the crime of helping information cyber crime,including refusal to perform information network security management.The crime of obligation adopts the legislative technique of blank guilt.The criminal law norm system must refer to the relevant departmental law.When criminal liability is determined,it should be based on criminal policy considerations,rationally divide the penalty limits of criminals,and only punish violations with serious harmful consequences.In the case of the intersection of the criminals and the criminals,it is necessary to insist on doubts in favor of the defendant's principle of applying civil liability.To determine the fault of Internet service provider,it is necessary to examine whether they have subjective knowledge or not.The duty of knowing or deserving knowledge needs to take into account the comprehensive evaluation of the professional level and predictability of internet service provider,and assume the duty of care in the industry standard.As far as the form of accomplice for infringement of copyright by internet service provider is concerned,its principal offenders include direct principal offenders and indirect principal offenders.Direct principal offenders should pay attention to the evaluation of the act of "duplication and distribution" in the establishment of the crime of infringement of copyright,and discuss different situations separately.The determination of the crime of helping information network criminal activities should be pursued in accordance with the principal offenders of accomplices.To investigate the criminal liability of internet service provider.One-sided accessory offenders should pay special attention to the accessory offenders who do not act.In particular,we should be more cautious about the conviction that internet service provider infringe copyright and refuse to fulfill the obligation of information network security management.The crime of refusing to fulfill the obligation of information network security management,as a legal crime,pure omission and circumstance offender,should further improve the relevant administrative legislation or make a more detailed and reasonable judicial interpretation in view of the rationality of its legislative application,consider raising the threshold of the crime of this crime,and amend it into a result In the process of judicial determination,the crime should be limited and interpreted,and the identification of internet service provider who do not fulfill their management obligations should be strictly in accordance with the provisions of existing laws and administrative regulations,and should take into account their technical ability and subjective mentality.At the same time,the determination of the"serious circumstances" of the crime should take into account both to take strong measures against crime and the protection of human rights.Judges should also give full play to the function of "proviso" in the trial of cases.