| The rapid development of new communication technologies has brought unprecedented challenges to the existing system.How to reasonably determine the responsibilities of network service providers and balance the interests of right holders,network service providers and the public have become a topic worth exploring.With the development of the theory of objective fault,whether the ISP has fulfilled the obligation of reasonable care has become the standard to judge whether the ISP has fault or not.At present,the application standard of the duty of care in the copyright infringement cases of the network service providers is not uniform,and there is a great deal of operation space.According to the consensus of the theoretical and legislative circles,there are three specific rules applicable to the duty of care,namely,the "knowingly" status of the ISP,the "ought to know" status,and whether the "necessary measures" have been taken in a timely manner.The duty of care is the product of case law.The standard of the duty of reasonable care should be confirmed by judicial practice.Based on the analysis of 75 cases,this paper finds that there are many differences in the considerations of "knowing clearly","should know" and "necessary measures",which leads to great differences in the results of similar cases.In view of this,through the analysis of typology,this paper reasonably identifies some factors that affect the size of the duty of care of network service providers.In the judicial practice,the standard of "rational person" can be introduced to set up the duty of care of network service providers for copyright infringement.In legislation,the duty of care of network service providers for copyright infringement should be defined in the order of before-the-event,in-the-event and afterwards. |
