The Fault Determination Of Indirect Infringement Of Network Service Providers

At the beginning of the 21st century,China introduced the principle of safe haven for the first time.Nowadays,the development of Internet technology is becoming more and more swift and violent.The emergence of some new technologies has made the Internet environment more and more complex,which has also made the online version of infringement more and more serious.Among them,information storage space service providers account for the highest proportion of infringement cases.Under normal circumstances,these platforms will prove that they do not constitute "knowledge" or "should know" of the infringement according to the "notice-delete rule" and the "red flag principle" in the safe harbor principle,so that they can not be liable for helping infringement..In the early days of the development of the Internet,this principle is certainly beneficial to the protection of network service providers,but under the current conditions of continuous progress and development of Internet technology,this system seems to have begun to show some problems.Some network service providers can still avoid liability through this system even if they have obtained huge benefits through infringement,which is obviously unfair.If left unchecked,the infringement may eventually become more serious.Therefore,it is necessary to reconsider the application of the safe haven principle in the current era.By summarizing the problems that exist in the application of the "notificationdelete rule" and the "red flag principle" in judicial practice,it turns out that the main controversy when the court applies this rule is how to determine the fault of the network service provider.Through analysis and comparison,it is found that in the process of fault determination,two main issues should be clarified.One is whether the network service provider "knows" the infringement phenomenon,that is,the application of the "notification-delete rule",and the second is the network service provider.Whether the infringement can be presumed to be "should be known" is the application of the "red flag principle".If the court can determine that it has a “knowingly” or “should know”subjective state through some existing evidence,and fails to take necessary measures to prevent the occurrence of infringement,it shall determine that it is subjectively at fault and therefore need to bear the burden of helping the infringement.Liability,otherwise you don’t need to be liable for helping tort.Therefore,this article sorts out the cases that have occurred in recent years,tries to find the contradictions,and then puts forward some suggestions for each contradiction.That is,we must first clarify the existing legal provisions and improve the relevant provisions on the determination of faults,such as improving the identification of "knowledge" by network service providers,and perfecting the presumption of "should know".Secondly,in the process of fault determination,other factors can also be considered,such as the indirect gaining of economic benefits that has increased the reputation,and the pre-litigation negotiation behavior of the right parties.