| The “notice-and-Take Down” process was originally designed to prevent OSPs from being overly implicated by infringing acts on the platform.However,since network service providers develop quickly,more and more right holders have issued improper takedown notices,using complaints as a means of unfair competition,which causes harm to those notified who did not infringe their right.It seriously restricts the healthy development of network service providers such as e-commerce platforms.The existing legal documents in our country do not clearly stipulate the requirements for the determination of improper takedown notices,and it has a lot of forms.There are too much discussion about the determination of improper takedown notices,which mainly focuses on the discussion of the elements of fault.There is also no clear provision for the legal consequences of wrong notification behavior,which leads to insufficient regulation of the behavior in the judicial circle.The article starts from the structure of asking questions-conducting analysis-proposing countermeasures,and is mainly divided into the following three chapters.The first chapter talked about application and problems of the right holders’ improper takedown notices determination rules.The first section expounds the legislative origin and application status of the rules for the identification of improper takedown notices by right holders,and lists relevant laws,judicial interpretations and cases.Section 2 raises the question,namely,the dilemma of the application of the rules for the determination of improper takedown notices by the right holder,which includes 3 aspects: disputes about the elements for determination,disputes over the level of determination standards,and unclear legal consequences.The second chapter mainly studies the identification of the right holders’ improper takedown notices’ behavior,and demonstrates from the 4 elements in tort liability.Since the illegality,damage result and causation are all uncontroversial,this chapter mainly discusses the elements of fault.The first section expounds the form of the fault of issuing improper takedown notices,sorting out the relevant judicial cases,and summarizing the specific fault forms of wrong notification,such as fair use,existing agreement between the two parties,and online defense.Section 2demonstrates the definition of fault for improper takedown notices,sorting out foreign legal provisions and judicial precedents as subjective arguments,and combines theoretical analysis to demonstrate that the determination of improper takedown notices should take into account the subjective goodwill of the right holder and the obligation to review reasonable use.The third section explains the composition of the fault of the improper takedown notices,that is,the determination of the improper takedown notices should be based on the objective + subjective theory,the slight fault is not a fault,and the right holders need to prove.The third chapter mainly studies the legal consequences of improper takedown notices by right holders,and proposes measures to regulate the right holder’s improper takedown notices in network services.Section 1 proposes the application of the system of affirmative action for non-infringement,Section 2 proposes the improvement of safeguard measures for reverse conduct,and Section 3 explains the determination and calculation. |
