Necessities And Legal Standards Of The Regulation Of Direct Infringement Involving Deep-linking

With the popularization of the Internet and the innovation of network communication technology,the emergence and widespread use of deep links,a special form of hyperlinks,has led to heated discussions in theory and practice.Compared with ordinary links,the emergence of deep links makes the content display gradually develop from "jump" to window-type,instead of directly entering the home page of the linked website,or without showing the URL of the linked website,that is,you can read the video,image or text information completely.Both in and out of the courtroom,academics and the judiciary have paid attention to deep linking infringement.In previous judgments,in addition to the traditional trial thinking such as "server test","user perception test" and "substantial substitution test",scholars and foreign jurisprudence have also proposed new judgment standards,including and not limited to "substantial presentation standard","new public standard","indirect control standard","new user test","direct link test",and so on.This article attempts to sort out and summarize the direct infringement of deep links,and discuss the necessity and criteria for regulating the direct infringement of deep links.Excluding the introduction and conclusion,the content of this essay is divided into three main parts.The first part is an overview of the infringement problem of deep linking,In this part,the definition,types,characteristics and manifestations of deep links are firstly explained.Combining with the characteristics of deep links,because deep links are fundamentally different from ordinary links in terms of operation ideas,commercial interests and negative impacts on copyright owners,some deep links should not be treated as the same technology and given the same legal evaluation as ordinary links.Then,this paper describes well-known cases of deep linking in domestic and foreign judicial practice and their trial ideas.The second part is a description of the necessity of regulation of direct infringement of deep links.Under the framework of copyright law,the act of information network communication includes both initial provision and other acts of information network communication services.From the interpretation of relevant international treaties and the provisions of China’s copyright law,it can be seen that the law does not make an exhaustive enumeration of the possibilities of the act of provision,and deep links are different from other acts of Internet service provision,and are close to the act of initial provision both objectively and subjectively.Combined with the policy guidance and the needs of Internet development,the inclusion of deep link infringement into the scope of protection of the right of information network communication is consistent with the definition of the right.It is also consistent with the essence of the right.The third part focuses on the "user perception test".Although the "server test" is a widely respected mainstream viewpoint in both judicial practice and jurisprudence,it has shortcomings in dealing with deep linking-it cannot be concluded from the perspective of law interpretation that the server standard is the only test to determine the legal nature of deep linking infringement,and insisting on the "server test"also ignores the technological development and the needs of commercial interests.In contrast,the "user perception test" is consistent with the purpose of copyright law,has the basis of legal interpretation,and is also consistent with the principle of balance of interests,and meets the needs of reality.Besides,the adoption of the"user perception test" is also supported by judicial practice.Although some courts adopted the "server test",in fact,the appearance of the act and user perception are still used to judge whether the linker has only provided the act of linking,and whether the source,URL address or any identification is displayed is the key fact that affects the outcome of the judgment,and the "act of identifying the source" has a very important position in the "user perception test".Therefore,it is concluded that the "user perception" test is appropriate as the criterion for direct infringement of deep links.This essay uses case study,comparative study,historical study,functional analysis and cause analysis to study the legal regulation of deep linking behavior in China.There are three main innovations in this essay.First,it argues for abandoning a strictly technical view of legal issues and instead discusses the shift from a strict "server test"analysis to a broader and more applicable "user perception test" analysis of judicial review of deep links based on "users’ indifference to technical differences and the goals of link developers".This essay discusses the reasons for shifting the judicial review of deep links from a strict "server test" analysis to a broader and more applicable "user perception test"analysis.Second,this essay analyzes the cases in which the "server test" was adopted in domestic judicial practice,interprets the reasons for the allocation of the court’s burden of proof from the perspective of user perception,analyzes the fundamental reasons for the court’s thinking,and extracts from them the way in which the "user perception test" is adapted to deep link infringement.Thirdly,this essay analyzes the objections of the academic community,responds to and refute the objections that the "user perception test" is too subjective and unstable.This essay believes that in practice,it is not difficult to prove,and we can adopt the method of analyzing cases from objective to subjective and reasonable limits,so that the "user perception test" is suitable for the court.The "user perception test"is suitable for use in judicial practice.