From 2007 domestic largest video sharing site tudou for the first time since the defendant infringement, has had dozens of video website the defendant infringement case, especially the Olympic year video broadcast for make this problem become more prominent. Video website as the network service provider, how to determine the legal liability in the online copyright infringement case? This paper focuses on the problem of potato net infringement case.

One, video website infringement case analysis

In April 2007, tudou was sued by xinchuan online (Beijing) information technology co., LTD. Plaintiff said in without the consent of the plaintiff and the defendant did not pay remuneration to, through the operation of the website of "tudou" to provide customers with online broadcast movie crazy stone, infringes upon the plaintiff shall be entitled to enjoy the movie "crazy stone" information network transmission right. Therefore, the court ordered the defendant to stop the infringement and compensate the plaintiff's economic loss of RMB 150,000 yuan. The lawsuit, dubbed "the first case of domestic video website copyright," has sparked a debate among industry and Internet users. And as the first great video sharing site infringement, the trial result is bound to be similar case set an example for industry, for the cfa and quoted in the process of trial will also look at the problems of the law, reflection on the future of network copyright legislation, law enforcement and serve as a way of thinking.

On March 10, 2008, the Shanghai municipal first intermediate people's court for potato website infringement decision is as follows: the defendant knowingly piracy and illegal reprint work would have been uploaded to the possibility of "tudou", failed to manage and monitor, leading to the once popular movie "crazy stone" by network users to spread and failed to remove in time, so the defendant subjectively with indulgence and help others to implement information network transmission right enjoyed by infringement of the plaintiff's fault. Ordered tudou operators Shanghai whole potato network technology company immediately delete the infringement of online movies, and enjoy the movie information network transmission right xinchuan online (Beijing) company economic loss and reasonable charges totaling 50000 yuan. The focus of the "potato infringement case" focuses on the following aspects:

1. The principle of "safe haven" is applicable

The "safe haven" clause in the field of copyright first appeared in the United States in 1998, the digital millennium Copyright Act (dmca). It is to point to in the case of copyright infringement cases, when the isp (Internet service provider) only provides the service, do not make the web content, if the isp were told of infringement, shall have the duty to delete, otherwise it is regarded as tort. The regulations on the protection of information network (hereinafter referred to as the "regulations") promulgated on July 1, 2006 also clearly stipulate the "safe haven" principle of information network transmission right. Article 23 the provisions of the regulations, "the network service provider to provide the service object search or link services, upon receiving notice of the holder, disconnect from infringing work according to these regulations, performance, sound recording or video recording of the link, do not assume liability to pay compensation; However, the joint tort liability shall be borne for the infringement of the works, performances or sound recordings which are clearly linked to or should be known. Whether the "safe haven" principle is applicable is whether the isp is "knowingly or knowingly" infringing.

At present, the video sharing site in the "privacy and copyright terms are written with similar tudou copyright statement, such as" this web site as a network service provider, for illegal reprint, piracy does not have adequate monitoring ability. However, it was found that there was an obligation to remove pirated and illegally reproduced works and to stop spreading. We do not bear legal liability for such infringement on the website, and the legal liability of infringement shall be borne by me." "Potato", however, the first-instance court statement without heed to this, and made a clear emphasis, the defendant cannot be already on the site with its "use agreement" in the copyright statement and the apparent infringement behavior of the web site to stop it. In potato infringement, Shanghai whole potato network technology co., LTD., applying the principle of "safe haven" for defense, said it belongs to the provider of network storage space, "tudou" everything is users to upload, once piracy or infringement will be deleted. "Tudou" audit is carried out in accordance with the signature of automatic identification, computer and "crazy stone" no signature, so don't know the work of alleged copyright violations, and had never received the plaintiff's notice. After receiving the complaint, it is deleted immediately. Therefore, it is not liable to compensate for the exemption under the regulations. However, the court considers that the determination of liability for infringement of such network service providers should be judged in accordance with the relevant provisions of the regulations and the specific cases. First, tudou is not a simple network storage service, is actually an audio and video website, delete suspected of infringing works deal with page is precisely tudou to work them uploaded on the Internet is the approval process, so the accused said not privy to escape liability tort is a kind of excuse. Secondly, analysis from the common sense, a movie filming required to pour into human and financial resources, the respect such as the popularity of the film involved in the analysis, the defendant as a professional web site should know movie "crazy stone" does not generally is the copyright owner or license another person to publish on the Internet itself available to the public for free viewing. Therefore, it can be concluded that the defendant has the wrong to connive and assist others in carrying out the infringement. In addition, the judge from tudou's analysis of the background setting the defendant has the right and ability to grasp and control the occurrence of infringement activities, but the user has issued several "crazy stone" and not be deleted, determine the defendant subjectively with indulgence and help others to implement information network transmission right enjoyed by infringement of the plaintiff's fault, does not include all the information network transmission right protection ordinance as provided for in article 22 of the conditions is not liable for compensation.

Judging from the terms of the sentence, the lack of use of infringement determines the probable judgment. However, it is not necessary and unique to infer the reason and conclusion. There seems to be a double standard on this issue: the liability for liability for infringement and the liability for compensation for tort liability. The principle of no-fault is that no matter whether the action is subjective or not, it should bear civil liability if there is a causal relationship between its actions and the consequences. In theory, the principle of imputation emphasizes the judgment of whether the actor should be responsible. "Responsibility is the result of accountability, but accountability does not necessarily lead to responsibility. The establishment of the responsibility or not, depends on the person's behavior and its result is in line with the responsibility of the constitutive requirements, and imputation is according to the responsibility is to seek for, and is not eventually established as the ultimate purpose to responsibility." 2.

2. What kind of infringement is it

In the case of potato infringement, the court of first instance argued that "the defendant has been guilty of condoning and helping others to infringe on the rights of the information network that the plaintiff enjoys". There is no special expression of "help infringement" in Chinese law, but it is explained in the judicial interpretation. The supreme people's court in "about carrying out the opinions on some issues of < > general principles of civil law", the "help tort" as a type of "common infringement" and think: "abetting, helping others, committed ACTS of infringement to the infringer". The legal basis of the common tort is that it can allocate damages reasonably, so as to reduce the social risk factors, so that the victim is in a better legal status, thus obtaining more adequate protection. Article 130 of the general provisions of the civil law states: "if the two persons jointly infringe upon another person's injury, they shall be jointly and severally liable." According to the principle of "joint responsibility", it is necessary to all common infringer litigants, only the direct infringement behavior person named as a defendant, to help the other person to lodge a complaint. The creation of joint tort liability is to share the responsibility of those who have joint torts, but it is not. In many cases of network infringement, only the Internet service provider can be regarded as a visual responsible person and ultimately be responsible for the infringement. Are feasible in civil lawsuit, but direct infringer at large, the network copyright infringement will not reduce because of this, did not have the effect of improvement of network environment, the waste of social resources is to a certain degree. Even if the Internet service providers in our country's joint and several liability shall have the right to continue to pursue the responsibility of the infringer initially after full compensation, however, to find the copyright person are almost on finding the infringer, and additional cost. In this way, the right to recover is merely a way to transfer the burden of finding the true infringer to the Internet service provider in a way that is extremely normative and procedural justice. Legitimate rights and procedures have created unreasonable responsibilities and risk shifting.