| Nowadays,Internet technology is developing rapidly,a technology called "deep linking" has gradually emerged.This new type of link enables users to browse the chained content directly without leaving the website,and the content is not stored in the server of the chaining website,but is presented directly from the server of the chained website.Deep linking greatly facilitate users,but also cause losses to the copyright owners of the chained works.Chaining sites often attract traffic by presenting paid content to users for free,while adding ads to generate revenue,which not only deprives copyright owners of control over the dissemination of their works,but also squeezes the interests of chained sites.In view of the qualitative problem of the nature of deep linking,the academic circles have not yet decided,and put forward "Server Principle","Users Principle ","Substantial Substitute Principle ","Substantive Demonstrate Principle " and "New Public Principle ".This article sorts out and analyzes the cases involving deep linking infringement in the past five years,and finds that in judicial practice,the qualitative and legal application of the act by the courts also adheres to the term,coupled with the difficulty of proof of the right holder due to the special nature of the network case,the determination of damages for infringement is fully incorporated into the discretion of the judge,undermining the authority of the judiciary.For comprehensive consideration,the " Substantial Substitute Principle " should be used as the tort determination standard of deep linking behavior." Substantial Substitute Principle " from the behavior itself,neither too subjective,nor too much emphasis on the economic interests of both sides,but also in line with the relevant provisions of Our country’s laws.In addition,the court should accurately apply the "Safe Harbor ".In the aspect of tort damages,setting up the burden of proof leads to attribution,clarifying the reference standard of compensation and introducing the punitive compensation system,so that the right holder can obtain reasonable compensation at the same time,it plays a warning role to the infringer. |
