Perspective | How Network Service Providers Fulfill Their Duty of Care - Precautionary Measures
Published:
2025-04-11
With the advent and rapid development of the information and internet age, the medium and breadth of information dissemination have undergone earth-shaking changes. Films, television dramas, and literary works are no longer presented and disseminated solely through traditional forms such as television or paper books. Any networked device allows anyone to easily and conveniently browse any work. However, in this context, China lacks a clear definition and regulation of the degree of due diligence that should be borne by network service providers, resulting in the inability to effectively protect copyright on the internet and network service providers bearing excessive due diligence obligations.
I. Raising the Issue
With the advent and rapid development of the information age and the internet age, the medium and breadth of information dissemination have undergone earth-shaking changes. Films, television dramas, literary works, and other works are no longer presented and disseminated solely through traditional forms such as television or paper books. A networked device allows anyone to easily and conveniently browse any work. However, against this backdrop, China lacks a clear definition and stipulation of the degree of due diligence that network service providers should bear, resulting in the inability to effectively protect copyrights on the internet and network service providers bearing excessive due diligence obligations.
In 2012, China promulgated the "Supreme People's Court's Provisions on Several Issues Concerning the Application of Law in Trying Civil Disputes on Infringement of Information Network Dissemination Rights" (hereinafter referred to as the "Judicial Interpretation on Infringement of Information Network Dissemination Rights"), and made minor amendments to these provisions in 2020. Article 11 of these provisions stipulates: "Where a network service provider directly obtains economic benefits from works, performances, or audio-visual products provided by network users, the people's court shall determine that it bears a higher degree of due diligence for the acts of the network user infringing on information network dissemination rights. Where a network service provider places advertisements on specific works, performances, or audio-visual products to obtain benefits, or obtains other specific economic benefits related to the works, performances, or audio-visual products it disseminates, it shall be deemed to have directly obtained economic benefits as stipulated in the preceding paragraph. Network service providers collecting general advertising fees, service fees, etc., due to the provision of network services, do not fall under the circumstances stipulated in this paragraph." Although this provision mentions that network service providers should bear a higher degree of due diligence, the definition of "higher" is not clear, and the due diligence obligations of network service providers are not strictly defined, leading to inconsistent judicial standards in practice and a large degree of discretion in the adjudication of cases related to due diligence obligations. So what measures should network service providers take to fulfill their due diligence obligations?
If we divide the stages at which the infringing acts occur, the stages at which network service providers fulfill their due diligence obligations can also be correspondingly divided into three stages, each requiring different countermeasures, namely pre-emptive measures, in-process measures, and post-event measures. In judicial practice, when judges determine whether a network service provider has fully fulfilled its due diligence obligations, they need to judge based on the timeliness and effectiveness of the above measures. This article will first elaborate on pre-emptive measures, and future articles will discuss in-process and post-event measures.
II. Definition of Pre-emptive Measures
Pre-emptive measures, as the name suggests, refer to measures taken by network service providers before an infringement occurs, but these pre-emptive measures are not equivalent to or inclusive of the examination obligations that network service providers should fulfill, because the actual implementation difficulty of the examination obligations is far higher than that of the due diligence obligations, and does not conform to the Hand Formula [i.e., B < P × L; if the cost of avoiding harm (Burden) is less than the product of the probability of harm (Probability) and the loss (Loss), then the failure of the actor to take preventive measures constitutes negligence]. In practice, pre-emptive measures specifically refer to technical filtering, which requires network service providers to technically filter the content uploaded by their users, thereby screening out infringing content and preventing users from uploading it, reducing the occurrence of subsequent infringements.
III. Current Status of the Application of Pre-emptive Filtering Technology
1. Overseas Technological Development and Current Status
Overseas pre-emptive filtering technology, i.e., copyright filtering technology, refers to a technology that can analyze and identify videos and audios, through which it can determine whether the target video or audio infringes on the Copyright of others, so that network service providers can take appropriate measures.
Foreign copyright filtering technology started earlier. Taking the American video portal website YouTube as an example, like most video websites, YouTube encountered a large number of copyright infringement problems in its early stages, and paid a huge price for it. Therefore, YouTube began to develop a system—Content ID system—specifically for auditing the videos uploaded by users to determine whether they infringe on Copyright, and it has been used since 2007.
The Content ID system has three main response mechanisms:
First, if the Copyright holder believes that these videos constitute infringement, the playback of these videos will be prohibited within Content ID, i.e., banned, including complete ban and partial ban. When the Copyright holder receives a notification from YouTube Content ID, after verification, if he believes that the video uploaded by the uploader does constitute an infringement, he can choose to completely ban it. At this time, the uploader cannot continue to upload the video. If the uploader continues to upload the video at this time, Content ID will send a message to terminate the user account's upload function. Partial ban means that after receiving the notification, the Copyright holder can decide to agree to the uploader uploading the video, but he can specify that viewers in certain regions can watch the video, while viewers in other regions cannot open the video.
Second, tracking. The Copyright holder allows the upload and free dissemination of infringing videos, but this is to promote their own films and create topics to increase their own popularity. Through the Content ID mechanism, they set up tracking of infringing videos, so that they can statistically obtain specific data information such as which viewers frequently watch their videos and which regions the viewers are from. This is very important for some small film production companies and some micro-film directors, and can greatly help them solve problems in data statistics.
Third, profit acquisition. The ultimate goal of Content ID is to obtain profits. When the Copyright owner believes that his film has been copied and pirated, he can add advertisements to the appropriate positions of his film through this mechanism, which not only allows the film to be disseminated to a wider range, but also can obtain certain advertising revenue. The advertising fees are generally jointly owned by Google and the Copyright holder, and Google and the Copyright holder will sign an agreement in advance to make an agreement.
In addition, in order to encourage viewers to purchase genuine films, Content ID also provides Amazon and iTunes links to infringing films, so that viewers can directly access and purchase genuine videos through these links.
2. Technological Development and Current Status in China
China currently mainly adopts digital fingerprint technology. A digital fingerprint refers to a unique fragment extracted from digital content that can identify the digital content. Commonly used fingerprint generation algorithms include MD5, SHA1, and Rabin fingerprint algorithms. Digital fingerprints only identify information about the work and its Copyright holder, and are more in line with the definition of "rights management information", and do not have the function of access control or Copyright protection to prevent specific actions from being taken against the work.
Among these digital fingerprint technologies, MD5 technology is the most widely used and representative. The MD5 value describes the 128-bit data digest obtained after calculating any target file using the MD5 algorithm. The MD5 algorithm is an algorithm specifically used for information summarization. Its core function is to generate a unique MD5 information digest that is highly related to the source file through its irreversible string conversion algorithm. In the subsequent information dissemination process, no matter what form of changes the post-dissemination file content has undergone compared with the source file (even if it is only a change of one byte), the new MD5 value calculated by the MD5 algorithm and the MD5 value calculated by the source file will be inconsistent. This is to ensure that information can be effectively prevented from being tampered with during information transmission. Although the MD5 algorithm has been successfully cracked in theory, it is still widely used in application scenarios with relatively low requirements for confidentiality or security.
3. Relevant Judicial Cases
In the case of "匆匆那年" (2018) Su Min Zong 1514, involving Baidu Netdisk, the plaintiff, Focus Interaction Company, the copyright holder of "匆匆那年," calculated the MD5 value for each episode of the drama and requested Baidu to delete the relevant episodes from Baidu Netdisk based on these MD5 values. Baidu argued that Focus Interaction's request clearly exceeded the scope of protection for the right of information network dissemination, and refused the request based on user data security and privacy protection. Focus Interaction then sued Baidu in the Nanjing Intermediate People's Court, demanding that Baidu cease infringement and pay economic losses of 2.8 million yuan and reasonable expenses of 200,000 yuan. In the first-instance judgment, the Nanjing Intermediate Court supported the plaintiff's claim, believing that Baidu failed to fulfill its due diligence obligations as a network service provider, constituting indirect assistance in infringement. Baidu appealed to the Jiangsu Provincial Higher People's Court. The Jiangsu Higher People's Court held that: "Baidu Netdisk users storing the infringing video files in Baidu Netdisk, the storage behavior of the Netdisk users and Baidu's provision of storage space do not constitute infringement of the information network dissemination right of the work in question. According to the Baidu Netdisk user agreement, 'Baidu Netdisk is an online service that provides data storage, synchronization, management, and sharing to a wide range of users. Baidu Netdisk is an information storage space platform; it does not directly upload or provide content and does not modify or edit user-uploaded content.' Article 10, Paragraph 1, Clause (12) of the Copyright Law of the People's Republic of China stipulates that the right of information network dissemination refers to the right to provide works to the public by wire or wireless means, enabling the public to obtain the works at their personally selected time and place. Therefore, this right mainly points to the dissemination behavior of works in the information network environment facing the public and enabling the public to obtain the works. For the provider of specific work file network storage space and the Netdisk user as the user of the network storage space, the storage behavior has a certain degree of independence, which is different from the sharing behavior initiated by different network users for the purpose of file dissemination. The storage behavior itself does not mean that the entity implementing the storage behavior also has the subjective intention to disseminate specific works, so the storage behavior of specific work files cannot be simply equated with the dissemination behavior of specific work files, and the mere storage behavior does not necessarily constitute infringement of the information network dissemination right of the relevant works." Ultimately, the Jiangsu Higher People's Court ruled that Baidu did not constitute aiding infringement and revoked the first-instance judgment.
It is worth mentioning that although Baidu Netdisk's MD5 value technology only identifies the MD5 values of user-stored files and does not review or browse their actual content, whether network service providers have the right to identify the content stored by users and whether this infringes on users' privacy rights are debatable issues. Therefore, finding a balance between preventing user infringement and protecting user privacy is a major challenge for network service providers in taking proactive measures and is also an issue that needs to be addressed by China's laws and regulations.
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