| Indirect infringement or joint tort liability of Internet Service Providers (ISPs) is one of the most important rules that heavily influence the legal order in the cyberspace. 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 reduces 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 application 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 cyberspace. 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. |
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