网络服务商共同侵权制度之重塑

A Farewell to Safe Harbor:Remodeling ISPs’Indirect Infringement Rule

网络服务商共同侵权(间接侵权)制度是影响网络版权秩序最重要的法律规则。在这一领域,美国式的安全港规则居于统治地位。十几年来的网络版权实践表明,安全港规则不合理地降低了网络服务商的注意义务,损害了网络服务商预防第三方侵权的积极性,使得网络盗版泛滥。为了克服安全港规则的制度缺陷,美国和中国的法院被迫限制适用红旗标准或策略性地适用引诱侵权和替代责任规则,结果过度扭曲了网络间接侵权规则。为了改变这一现状,中国在修改著作权法时应当果断地放弃美国式的安全港规则,恢复侵权法一般规则的适用,强化网络服务商的注意义务。

Indirect infringement or joint tort liability of Intemet Service Providers （ISPs） is one of the most important rules that heavily influence the legal order in the eyberspace. Since 1998, the so-called safe-harbor rule under the U.S. copyright law has gradually become dominant in this field in many countries. Our law-makers blindly transplanted such rule into China as well. However, the copyright law practices in the United States and China have shown that the safe-harbor rule overly re-duces an ISP＇ s duty of care therefore eliminates its incentive in preventing third parties＇ infringing activities, which in turn renders online-infringement policing an impossible mission for most copyright holders. In order to remedy the legislative defect, courts in the U. S. and China choose to restrict the ap- plication of the so-called ＂red flag＂ test under the safe-harbor rule, or replace it strategically with the inducement liability or the vicarious liability rules. While these measures do help to suppress rampant online piracy, the price is high, that is, the courts in both countries unnecessarily distort or Balkanize the indirect liability rule in the cyberspaee. Currently, China begins to amend its Copyright Law for the third time. The legislature should abandon decidedly the U.S. version of safe-harbor rule, and re-introduce a general tort liability rule to reinforce an ISP＇ s duty of care. Under the new rule, once an ISP has obtained a general knowledge of third-parties＇ infringing activities, it shall take reasonable measures to reduce the risk of infringement as low as reasonably practicable. Failing to do so, the ISP would be held indirectly liable, even if it has no specific knowledge of the direct infringement.