Research On Network Tort Issues Of Cloud Server Provider

In recent years,information network technology is updating and iterating at an unprecedented speed,and the way and speed of people acquiring and disseminating information have undergone fundamental changes.Cloud computing technology is currently the first,the most remarkable,and the fastest developing information network technology.Its emergence has subverted the traditional server model,brought earth-shaking technological changes in information storage and communication,and also brought new challenges and impacts the copyright protection under the network environment.In particular,after the second trial of the "Alibaba Cloud Case",the first case of my country’s cloud server provider,has been revised,there are different opinions in the judicial practice and academic circles.The path to judicial determination of cloud server providers’ network infringement liability has become a legal issue that needs to be solved,which actually represents a fierce confrontation between copyright and information privacy security protection in cloud computing field.This article takes domestic cloud server provider network infringement case of Alibaba Cloud as the starting point,first introduces the four major controversial issues by introducing the case,and discusses the issues separately.The first part is about the subject nature of cloud server.The first part is about the qualitative nature of the cloud server.The server leasing service provided by the cloud server provider belongs to the underlying technical service of IAAS,and it cannot be included in the four types of network service providers in the "Regulations on the Protection of the Right of Information Network Communication"(hereinafter referred to as the regulations).However,it can be included in the general network service providers in the original Tort Liability Law or the Tort Liability Chapter of the Civil Code.The second part discusses that cloud server providers should not apply to the "notice and take down"rule,which is neither technically feasible,and fixed-point removal measures such as shutting down servers will also affect the privacy of customers’ privacy data.Furthermore,it will violate industry norms and national laws,breed malicious lawsuits,and even affect the development of the entire cloud computing industry.At the same time,it should be applied to the "notice and necessary measures" rule stipulated in the original Tort Liability Law or the Tort Liability Chapter of the Civil Code,adopting necessary measures such as forwarding notices so as to prevent the damage from expanding.The third part mainly discusses the criterion for judging the necessity of necessary measures based on the principle of proportionality.And it is comprehensively demonstrated from the three aspects of legislative purpose,judicial precedents and practical significance that forwarding notice is one of the necessary measures.The fourth part analyzes the circumstances in which notifications were found to be unqualified in the Alibaba Cloud case,and then attempts to learn from the relevant legislative experience of foreign countries to solve the current operational dilemma of qualified notification requirements.In the fifth part,I put forward my own countermeasures and suggestions for the cloud server provider network infringement that is full of problems in my country.From the perspective of protecting rights holders,cloud server providers are obliged to actively contact the rights holders and confirm the requirements of the notice under the notice of defects and the pre-litigation injunction system should be adopted and improved.From the perspective of protecting cloud server providers,cloud server providers should follow the principle of proportionality,apply the principle of notice and take down,take necessary measures and improve counter-notice procedures.Based on the protection of both parties,we should clarify the requirements of the qualified notification,and try to explore the complete judicial identification path of cloud server provider network infringement.