Internet Copyright Infringement Liability Real Case Analysis

Of: Tao Guanghui (Jiangsu Xue Jimin law firm) Site Release date :2007-11-12 9:07:09

[Abstract] With the popularity of Internet use and development operations, the operator is facing more and more human rights litigation, as one of the network operators, service providers offering service for various violations of the copyright holder network services intellectual property interests, how to bear the corresponding legal responsibility for the use of a network of business problems to be solved. This article is based on the movie maker v. Telecom network copyright infringement case of real analytic attempt to resolve the telecommunications company's network from the services point of view, combined with China's relevant laws and principles of copyright law, legal practice and emerging telecommunications companies as a network service network providers constitute copyright infringement and how to assume responsibility for infringement of a beneficial.

About the case
Megaupload is China Telecom in September 2003 and formally launched the country well-known Internet applications, unified business brand. China Telecom and content service providers, entered into a cooperation agreement, China Telecom ChinaVnet site by the establishment of a unified payment platform, a unified marketing and publicity strategy, and the corresponding background sites by content service providers, self-editing, management and control, content service providers to provide legal video work uploaded to the site. Internet users are paying to China Telecom, click on the relevant page megaupload, you can get all kinds of film and television works online broadcast rights to watch film and television works.
April 2006, a film producer found his work a film without its authorization to the Megaupload site in the province paid by the user clicks play, where the province to immediately prosecute Megaupload Telecommunications (hereinafter referred to as the telecommunications company) and the content service providers. For content providers, and upload the video works if there is no source of legitimate authority, we have to bear the responsibility of Internet copyright infringement; but telecom companies, their charge is responsible for establishing a unified, communications platform, From the technical background to the works content services on their own editing, management, and his work on the legitimacy of the uploaded video and content service providers have also been agreed upon by its own responsibility, and thus the occurrence of violations fault does not exist, so do not assume legal responsibility.
Network for telecommunications companies constitute copyright infringement, their legal responsibility to identify the incident became the focus of attention problem. In my opinion, to determine whether the infringement and how telecom companies pursue their legal responsibilities, subject to the following ideas: First of all, definitely provide services to their behavior, the qualitative behavior will be directly related to the telecommunications company's position in the infringement; Secondly, For the conduct involved, how the provisions of existing laws, and laws of other countries is how to treat the act; again to determine whether the telecommunications company infringes the legal elements of that; Finally, in considering the liability held telecommunications company, when What factors must be considered.
Therefore, a more comprehensive analysis and resolution of this dispute, we must resolve the following problems: 1. ChinaVnet the nature of the behavior of services provided; 2. The behavior of how the relevant legal provisions and the behavior of the elements of infringement; 3. Telecommunication company liable to be taken into account --- the principle of balance of interests.

First, the network service provider services to the analytical nature of the act

Generally believed that, in relation to Internet services, there are three types of provider: Web content providers (Internet Content Provider, referred to as ICP), Internet service providers (Internet Service Provider, referred to as ISP), network equipment providers (Internet Access Provider, referred to as IAP). However, such classification is only a general sense, the technical classification, does not have the legal sense of course, although the legal classification and the classification of technology and can not be separated. This indicated that we service in the event of infringement of legal status for the qualitative must be combined with a provider of a particular service, a comprehensive in-depth behavioral test to determine at what time the service provider status, but for now the rapid development of Internet applications business, only three kinds of categories of things probably will not meet the precise classification of needs, for example, at present many large ISP service providers while providing both IAP and ICP services. Therefore, to a certain Internet application service providers involved in the conduct of a qualitative piece, the best services can step on the second decomposition, the behavior of "technical analysis" in order to facilitate as close as possible the nature of things. In other words, the rule of law requires evaluation of the service provider the specific acts, including acts involving the whole process, not all of the service provider acts. Therefore, telecommunication companies, we conduct the steps involved in analytical services is as follows: first, the telecommunications company to establish Megaupload website, the website set up fee platform, telecommunications companies megaupload the unified brand publicity; the second step , telecommunications companies and content providers signed a cooperation agreement, the supply account number and password, upload video works by, giving it the platform of the editing, management (technology, telecommunications company only total control of the platform, the platform within self-management by the content provider, in fact, the existence of large amount of information on websites, telecommunications companies nature of the business, telecommunications companies have not really edit it in any way, modify); the third step, content providers upload video works, and The order of the uploaded video work, time for editing, management; fourth step, the network user to megaupload site, pay, click on a works online for viewing. It can be seen from the telecommunications companies and content providers cooperation division, charged by the telecommunications companies platforms, marketing platform, content providers and television works, network users on demand works, the three parties could thus be their own interests. Further, content providers like publishers and telecommunications companies like publishers, Internet users are similar to the purchaser or consumer publications. First of all publications by the publishers, then, provides marketing, distribution channels, communication channels, and through the channel to allow publications to be buyers know, the last is the buyer's purchase and consumption. In fact, Internet users and consumers access to online audio directly from the store to buy or rent audio-visual products VCD or DVD player in a particular machine, as both of them to meet the spiritual needs, the difference only in the different carriers, as Play space-time and frequency differences, then it could be reflected by the price. Therefore, based on the analysis involved all the main acts, I believe that content providers on the Internet application services, the actual users need to provide information, pictures, video of the act is undoubtedly the ICP's behavior, but will create a telecom company ICP platform for marketing and fees paid for Internet users to download audio-visual works of behavioral targeting is a network service provider ISP's behavior is more in line with the facts. Of course, this is the case involving infringement of the needs of telecommunications in the context of the particular nature of the act, if from a comprehensive point of view, the telecommunications company's network services will certainly be involved in acts of ICP's content, but this is not to explore in this article problems.

Second, the network service provider constitutes infringement of the elements of the resolution

Combined with the 2003 Supreme Court "on the trial of cases involving computer network copyright disputes the interpretation of the law applicable to a number of issues," Article 4 of the 2005 "Internet Copyright Protection" in Article 2 and July 1, 2006 implementation "Information Network Transmission Right Protection Ordinance" article and other provisions of section 14,20,22, can be seen, the current ISP's responsibility to pursue the issue, my opinion is the law relating to the exemption under certain conditions.
In fact, in many countries, copyright laws have made the network a similar requirement. This is a "safe haven principle" (safe harbor). Means that as long as the ISP followed a pre-defined procedures and rules specific to that in the event of network copyright infringement case, when the ISP only provides room service, do not create content, if the ISP was told infringement, there are deleted obligations otherwise be considered infringement. If neither infringing content stored on the ISP's server, they were not told what should be deleted, then the ISP does not bear tort liability. ISP then this clause as a defense against allegations of infringement of rights holders to prove that there is no fault of their own on the violations to hide in the law for building a "safe harbor", need not bear tort liability.
ISP though the law provides for exemption under certain conditions can be related to the responsibility, but there is a need Cong ???? law itself to explore the behavior of telecommunication companies involved in nature in order to better solve the problem. In general, to identify companies involved in telecommunications act, that the services provided as an ISP network acts constitute infringement, you must have the following four elements. First, the telecommunications company with unlawful sexual conduct. Unlawful sexual performance in three areas: conduct violated the rights of others; acts in violation of statutory obligations; are in violation of the social interaction rules (public order and good morals); the implementation of the act include the perpetrator's positive for and negative omissions. Second, the telecommunications company's conduct caused damage to the interests of rights holders. Damage is a result of certain acts or events of a person protected by the tort law rights and interests of the interests of not being certain. Third, the telecom company's services and rights of human behavior are causal relationship between the damage. Fourth, the telecommunications company in the implementation of infringement should be a certain degree of fault. The existence of fault Telecom Elements of violations, if there is no fault of the perpetrator, the telecommunications company's conduct did not constitute infringement. Determine whether there is fault telecommunications companies, can be divided into the following situations to identify: first, the telecommunications company knew or should have known ICP upload information such as film and television works on the existence and content of the right to defect, still be spread, this time at fault Obviously, easy to prove. Second, ICP misleading, telecommunications companies can not determine whether the rights of the defects, at this time, the telecommunications company shall provide to ICP asked whether there is a clear message to the right to defect. If the telecommunications companies did not conduct interviews, determine the existence of fault. Third, telecommunications companies and the review process by asking, still can not determine whether the information was defective, then there is no fault found. Fourth, if the right people on the telecommunications company to fulfill the obligations of effective after the telecommunications company known infringement of the information, at the technical level and economic level are permitted circumstances, is able to contain but not as negative, should be identified fault exists. Only satisfy the four elements, the telecom company will be identified as involved in acts of infringement. Through observation, we can find as the ISP of the telecommunications company involved in service, not elements of both the above points, therefore there is no evidence that Telecom's fault case, the telecommunications company's actions constitute infringement because it did not meet elements should be as not to constitute infringement.

Third, the principle of balance of interests impact on the identification of cases resolve

The interests of intellectual property rights, public interest and the balance between technological development has been the core principles of intellectual property protection system. The case of telecommunications companies to use its own technology, reputation advantages, charges for content providers to create marketing platform for Internet users on-demand services, the formation of three all win situation. The occurrence of cases is due to Web content providers who provide copyright infringement of television programs and movies, and telecommunications companies to make a reasonable duty of care in the same time, on the one hand to the general content providers, network users with a convenient, on the other hand Because the behavior of content providers have suffered litigation tired. This highlights the contradictory goals of modern copyright system with two aspects: it is necessary to protect the works of creation should be based on rights, to stimulate further creativity; also ensure copyright works, fast, effective communication, enrich the community wealth, so as to facilitate public access to these works. Combined with the present case, if the tort liability judgments against telecommunications companies, to stop the service to the public interest and network technology, network application development services are useless, while content providers shall be ordered to bear the responsibility of Internet copyright infringement, enough to stop the infringement behavior generation, to make up for loss of the copyright owner's copyright interest, copyright protection system to meet the need to encourage innovation. Therefore, in the case identified the telecommunications company's ISP responsibility for the acts from the point of balance the interests of comprehensive study is useful.

IV, Conclusion
For Internet Copyright Infringement is based on the second network based on the nature of the violations found involved in acts with the general status of the main suspects are not necessarily linked. In this case telecommunications companies fees generated by marketing platform acts should be recognized that the time involved in the network content provider ISP's behavior, on the one hand, the relevant legal provisions of the act is to bring evidence to the copyright holder to remove the measures after Disclaimer; the other hand, from the Internet Copyright Infringement of view, the telecommunications company's infringement case because the elements identified as the lack of which can not be established. In addition, countries are advocating the principle of balancing of intellectual property should also be the case in the court decisions should be taken into account.

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References:
1. Zhou Xiaobing: "ringtone found copyright infringement" and "The Trial Frontier", 2004, 9.

2. Chapter faithful: "The United States in 1998 Digital Millennium Copyright Act Introduction", "10000 State law", 2000 107.

3. Xue Hong: "On the copyright liability of Network Service Providers", "Technology and Law Quarterly", 2000, No. 1.

4. Shi Ying: "On the ISP network Tort Liability", "Shandong trial", Volume 21, No. 167 overall.

5: Jiang Zhipei: "copyright protection under the network environment and network service provider liability", http://www.privatelaw.net.cn/new2004/shtml/20041030-235957.htm.

6. Song Jie: "On the Internet service provider tort liability", http://www.chinalawedu.com/news/2004_8/18/1625219674.htm.

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