Research On Copyright Infringement Of Deep Link

With the development of Internet technology and the continuous improvement of social public demand,the presentation of works on the Internet has become more diversified.Internet service providers focus on seizing market share,among which there are a large number of illegal business behaviors.They use the way of setting deep links to grab resources from the network and gain benefits,bringing serious economic losses to legitimate websites.In judicial practice,there are still disputes over the qualitative and regulatory ways of setting deep link behavior,and different judgments often occur in the same case,which leads to the failure of the theoretical and practical circles to form a unified view,and thus the interests of the right holder cannot be fully protected,or the behavior is overcorrected.In order to solve this problem,this paper selects three cases as the starting point to conduct in-depth analysis of deep link.By analyzing disputes caused by deep link and similar judicial adjudication documents,three problems are summarized in such cases: the nature of deep link behavior is unclear,the selection of infringement determination standards is widely different,and a unified regulatory path cannot be formed.In order to solve the above problems,first of all,from the technical aspects,clear definition of deep link,and combining with the provisions of "World Intellectual property copyright Treaty" and "Copyright Law" on information network transmission right,concludes that the deep link behavior which does not form independent "transmission source" doesn’t constitute information network transmission behavior.Secondly,after studying relevant literature at home and abroad,this paper believes that combined with the current situation of Internet development and the needs of judicial practice,"server standard" is the most appropriate standard for infringement determination.It not only considers the control scope of exclusive rights,conforms to the original intention of legislation and technology neutrality,but also provides a quantifiable standard for the determination of the nature of behavior in judicial practice.That is,when the link setter doesn’t upload the work to another server,its behavior does not infringe the right of the holder to disseminate information on the network.Finally,different regulation paths are found according to the standard of whether the linked website is legal: when the linked website is a legitimate website,the link setters can provide deep links to the public by evading the technical measures to protect the works of the linked website,which can be applicable to the provisions of our Copyright Law on prohibiting the avoidance of technical measures to regulate this behavior.When the linked website is a piracy website,if there is a common intention between the link maker and the linked website,both of them constitute a joint infringement of the right of information network transmission;If there is no joint intention between the two,when the link setter knows or should know that the linked work is an infringing work and still establishes the link,the two shall constitute direct infringement of the right of information network communication respectively and bear the liability in part,and the link setter shall bear the tort liability for the expanded part of the damage to the right holder.