Research On The Duty Of Care To Copyright Of Cloud Server Rental Service

By referring to the “U.S.Millennium Digital Copyright Act”,China’s“Regulations on the Protection of the Right of Information Network Dissemination”stipulates four types of network service providers,and makes detailed provisions on the duty of care of the four network service providers in indirect infringement of copyright.As a consequence,“Regulations on the Protection of the Right of Information Network Dissemination” can solve the majority of problems about indirect infringement of copyright in the network platforms.However,along with the rapid development of information network,more and more types of network services which are beyond law expectations emerge ceaselessly,in which includes the cloud server rental service providers.The "Ali-baba Cloud Case",which is often known as the first case of domestic cloud server,has aroused a heated discussion about cloud server rental service providers in the academic circles.The problems mainly focus on: the qualitative nature of cloud server rental service,the application of "Notice and Takedown" rule to cloud server rental service providers,and the necessary measures that cloud server rental service providers should adopt.The paper analyzes and clarifies the above hot issues,and clarifies the duty of care that the cloud server rental service provider should bear in the indirect infringement of network copyright.It is expected that this paper could provide a rational reference for China to carry out relevant legal legislation and judicial practice in the coming future.The first chapter makes a qualitative analysis of the cloud server rental service provider.The subject nature has a direct impact on the application of law,which is the first premise to solve the scope of the duty of care of the cloud server rental service provider in the indirect infringement of copyright.At the beginning,this chapter combs the controversial views on the nature of cloud server rental service.The main controversy is whether the cloud server rental service provider belongs to the information storage space service provider or not and its specific justifications.The information storage space service which is stipulated in the regulations of our country requires that the service provider should have the ability of the information-control.After analyzing the technical characteristics and data security obligations of the cloud server rental service,it can be seen that the cloud server rental service providers can control the information technically but they can’t do it due to legal reasons.Therefore,the cloud server rental service is not an information storage space service but just a new network service that has not been stipulated in the “Regulations on the Protection of the Right of Information Network Dissemination”.! Judicial practice can only solve the duty of care to copyright of cloud server rental service through the Internet infringement liability clause of the Civil Code.The second chapter discusses whether the cloud server rental service provider can apply the "Notice and Takedown" rule.This chapter firstly points out that the "Notice and Takedown" rule is an important embodiment and core rule of network service provider’s duty of care.Secondly,the chapter analyzes the basic jurisprudence of the application of the "Notice and Takedown" rule,that is to say,not all Internet service providers can apply this rule,and the limitation of the application lies in the "Notice and Takedown" rule requires service providers should clear the infringing content.However,due to the legal obligation of data security protection,the provider of cloud server leasing service can not implement location clearing,that is the reason why the "Notice and Takedown" rule cannot be applied to cloud server leasing service.The third chapter analyzes the necessary measures that the cloud server rental service provider should take in order to fulfill the reasonable duty of care in indirect infringement.This chapter firstly proposes that the function of Transfer Notice is to safeguard the right to know of the suspected infringing users,and only has a warning effect on users at most.It is a kind of expanded explanation that the Court regards Transfer Notice as a necessary measure of cloud server rental service,but it is reasonable in facing the problems caused by the development of new technology.However,this chapter then proposes that,from the perspective of literal interpretation,Civil Code prescribes the Transfer Notice and necessary measures as a parallel relationship.As a legal obligation of all Internet service providers,Transfer Notice is no longer suitable to be explained into the scope of necessary measures.Finally,this chapter proposes that in the face of repeated infringement users,cloud server rental service providers should bear a higher duty of care and take more stringent necessary measures,for example,suspending or terminating their services.