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美国著作权法中的网络侵权研究A study of network infringement in American co

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This article systematically discusses the problem of network infringement in American copyright law. This paper, combining theory with practice, comprehensively studies the phenomenon of infringement in U.S. copyright law, focusing on the problem of network infringement in U.S. copyright law by comparing the method of analysis, the method of case analysis and the method of empirical analysis and dialectical analysis. Through further study and comparison, we further discuss and think about the problem of network infringement in China's copyright law.
The paper consists of two parts. The first part of the paper introduces the research on the general infringement problem in American copyright law. In the case of a clear infringement intent, through two steps to identify the composition of infringement. The use of infringement in copyright law is reasonable. Unlike the fair use cases listed in our copyright law, the US Copyright Act sets out four non-exclusive factors of the principle of fair use and further enhances and improves the principle of fair use through judicial jurisprudence . For copyright infringement relief, the US copyright law is mainly through three kinds of relief means to safeguard the interests of copyright holders. The second part of the paper introduces the research on the problem of network infringement in American copyright law.After analyzing the phenomenon of network transmission infringement, this paper focuses on the three infringing principles in network infringement, namely, the principle of infringement, the principle of subrogation and the principle of infringement. Since the principle of looting is the latest application principle of the US Supreme Court to deal with the case of network infringement after 2006, the principle of luring the infringing principle and the previous principle of assisting the infringement and the principle of subrogation infringement are compared , and the four points are deeply thought.There are many problems in network infringement. This chapter chooses four most prominent and most important infringement phenomena in the network to analyze the network infringement problem. to look forward to a deeper understanding of the issue of network infringement.
1 Introduction简介
The further development of digital technology and the Internet will lead to new problems in copyright protection. In the face of the rapid development of digital network technology, the traditional copyright law has been an unprecedented challenge, the creation of works in the way of change, the performance of the work in the form of changes in the way the work of moral changes in the way . For digital music, network works, network software, the traditional copyright has been unable to explain, network service providers are also different from the past publishers. Old balance is broken need to establish a new balance, the old copyright protection system is clearly unable to meet the new needs, network communication rights, technical measures, rational use of new nouns, is the product of various interest games. This will deepen the contradiction between copyright owners, Internet operators and Internet technology developers, Internet users. US copyright law can not completely solve these contradictions, the Supreme Court will introduce new legal and judicial jurisprudence to coordinate these issues , after all, technology is to develop, the user's reasonable use of the requirements must be met, so that only Sacrifice part of the interests of copyright owners to meet the needs of reality. Judicial jurisprudence made by the United States courts and the legal measures of the relevant network protection introduced by the government will not only affect the thinking mode of the intellectual property community in the world network, but also have a new and far-reaching impact on China. 
2 Infringement of copyright in the United States
2.1 Determination of copyright infringement
Article 106 of the US Copyright Act gives the copyright owner five exclusive rights: reproduction, interpretation, distribution, performance and exhibition.Article 602 of it gives the copyright owner the right to control copies of copyrighted works and sound recordings that are copyrighted from the United States. According to the copyright law 501 any violation of the rights of the copyright owner's behavior  is an act of tort. The process of copyright infringement is very complicated. 
In judicial practice, it is generally used a method of "two steps" which is used in the “Arnstein” case to confirm whether a work infringes the copyright of another work. That is, in the case of the trial, we must first determine whether the defendant copied the plaintiff's work. Secondly, whether the copy has reached the level of illegal possession, that is to say, the existence of the same or substantial similarities between the two works .
Infringement is divided into two steps:
Step 1: Copy
In the case of "Arnstein", the defendant copied or copied the plaintiff's software work in three ways. The first is proof by direct evidence. However, the defendant directly admitted that the original copy of the plaintiff's software work is almost non-existent. The second is the defendant's contact with the plaintiff's work, the defendant's software works and the plaintiff's software work has the similarity of expression. The third is that there is a significant similarity between the defendant's software work and the plaintiff's.
In the second "post-exposure similarity" replication process, contact means that the defendant has the opportunity to see, understand or feel the copyright of the plaintiff's software work. In general, the widespread spread of the plaintiff's work, or the public's access to works through bookstores, libraries, radio, television, etc., can be concluded that the defendant contacted the plaintiff's work. Contact can be directly or indirectly. In the 2010"P&M" case, the plaintiff created software using network in France as a part of a operating system, but the a network protocols and security module were less successful . The defendant in 2011 in Apple created a PC called "apple", won the commercial success. The court found that a publisher had dealt with the plaintiff's work in the 2011s , and the defendant had contacted the plaintiff's work through the publisher. The Court of Appeals for the Second Circuit stated in the judgment that the connection of the plaintiff to the third aspect of the defendant could adequately prove that the accused had come into contact with the plaintiff's work. The similarity means that the work of the defendant is similar to that of the plaintiff, except that it is interpreted as copying and can not have any other explanation. In the process of proving similarity, the court allowed to compare the similarities and differences between the two works. At the same time the court also allowed the use of evidence provided by experts to evaluate the similarity between the two works.
It is important to note that in the case of a "contact similarity" infringement case, only significant similarity is not enough and must be accompanied by the possibility of exposure to the plaintiff's work. In the 1984 "Serra" case, despite the expert's evidence that the plaintiff's work had a lot of similarity to the defendant's work, the jurisprudence did not determine the defendant's infringement, even though the jury determined that the two works were substantially similar  The The reason is that the plaintiff did not prove that the defendant approached their work. Significant similarity only helps to indicate the possibility of contact but can not consider it in isolation.#p#分页标题#e#
Step 2: Illegal occupation and substantial similarity
Defendant Lamachia (Lamacchia), 21-year-old, MIT students, he has an electronic bulletin board (bulletin board Service,bbs) on the Internet through the computer system of the school, allowing others to use this bulletin board to upload (upload) and download (download) activities in the form of anonymous or kana computer software. The computer software involved in the software is widely used in the industry, and is pirated. Lamachia himself has not gained any economic benefit from it, with the rules of the computer hacker's game, he is only a system operator, helping to exchange software. The use of this bulletin board is particularly large, which has attracted the attention of the school authorities and the FBI. After the initial judicial process, the United States government accused him of "with unknown others" conspiracy, to the software manufacturing industry caused more than 1 million of dollars of U. S. losses, thus prosecuted. However, because the law of criminal liability of traditional copyright infringement requires that the defendant should have the purpose of "intentional and obtaining commercial interests or private financial income", the United States government can only circumvent copyright law, and it is accused of violating the Telecommunication Fraud Act (Wire Fraud Act) of Lamachia. The Federal District Court, which accepts the case, considers that the case does not apply to the Telecommunications Fraud Act, since the Telecommunications Fraud Act is directed against fraudulent acts carried out by the media, such as radio and television, and does not involve the act of copyright protection in the case. If it is permitted to apply the Telecommunications Fraud Act to accuse copyright infringement, the remedies of copyright law will be reversed fundamentally . The penalty liability stipulated in the copyright law applies only to the situation stipulated by the legislators in Congress. The court finally found that the criminal penalties relating to copyright infringement must be specially stipulated by Congress in copyright law, not by other laws. In view of the fact that the defendant Lamachia in this case has not profited from the beginning, nature does not constitute a copyright infringement criminal liability for "intentionally and for the purpose of obtaining commercial interests or private financial gains", thus the court judgement Lamachia innocence.
The court's verdict triggered a major discussion of amending copyright law that must plug the loopholes in the relevant laws and impose penalties on copyright infringement activities without intentional or profit-making. There are two different opinions in the United States. The pro believes that it helps to encourage the normal business of e-commerce. Opponents argue that it will hinder information exchange and technological development on the Internet.
The United States government apparently very dissatisfied with the verdict, and therefore urged the United States Congress to amend the law to remedy loopholes, December 26, 1997 formally passed the implementation of the "Anti-Electronic Theft Act" (no Electronic Theft Act, called Net Act) is the United States Congress in response to the Lamachia case verdict .
In the copyright infringement litigation, the core criterion for determining infringement is essentially similar. Substantial similarity is from the reader's point of view, that is, the average reader in the comparison of the two works, whether that there is a substantial similarity between the two. If they feel that there is a substantial similarity between the two, that is, there is infringement; if they feel there is no substantive similar between the two works, there is no infringement . But how to determine what is the general reader? In general, when the infringing works embezzled the expression of copyright works, making the reader feel that the two works have great similarity, some of which readers will go to buy infringing works. The reader in this process is the general reader we described above .
2.2 Fair use of copyright
The principle of fair use has traditionally been defined as "the privilege of the use of protected material in a reasonable manner without the permission of a person other than the copyright owner" .
Article 107 of the Copyright Act of 1976 requires the Court to determine whether a particular use is reasonable through a case-by-case review and provides for four non-exclusive factors as a result of the Court's review of the principle Assessment criteria.
(1) the nature and purpose of the use: the defendant is for the reasons for the use of protected works.
(2) the nature of copyrighted works: the nature of the protected works and their value to determine the rational use of our principles can also have a certain impact.
(3) the proportion and status of the used part: that is, from the quantity and quality of the two sides to examine the defendant's use of protected works is excessive.
(4) the impact of protected works on potential markets and values. This is the most important of a single measure.
Article 503 of the US Copyright Act provides that, in the course of the proceedings, if the court deems it necessary, it may order the seizure of the infringing copy and the tools used to make the infringing copy, such as plates, models, fonts, records, tapes, film negatives, etc. Wait. Article 503 also provides that in the final judgment the court may order "the destruction or otherwise disposition" of all infringing copies and the means for infringement. This is a step forward in the 1909 copyright law's "destruction" provisions, and the courts can flexibly deal with infringing goods in other ways other than destruction.
According to Article 504 of the US Copyright Act, the damages available to the victim include actual losses, infringing profits and statutory damages.
(1) the actual loss
The actual loss is the loss of the market suffered by the copyright owner as a result of the infringement, or the proceeds that he can obtain if there is no infringement . The actual loss is divided into two types:
First, sales losses.
Second, the license fee or market value.
(2) infringing profits
How to determine the infringing profits? The plaintiff must first prove the total income of the infringer. Total revenue is the total number of infringing copies multiplied by the unit price of the infringing copy. The plaintiff can use the market valuation method and the sample sample survey method to prove the defendant's total income, so that the burden of proof transferred to the defendant's head. The defendant must state which costs are not infringing profits.
(3) statutory damages
When the copyright owner considers that his actual loss and the profits of the infringer are difficult to prove or can not be proved, or if it is deemed that the actual loss and the infringing claim are unfavorable to himself, the legal damages can be chosen. And from the time point of view, before the court has not yet made a final decision he can always choose to statutory damages. So that even if he chooses the actual loss or infringement of profits in the proceedings, but if it is difficult to prove or may be unfavorable to their own, can also be made before the final decision to require statutory damages.
(4) litigation costs and attorneys' fees
Article 505 of the US Copyright Act provides that the court may, within the discretion of the court, award reasonable costs and attorneys' fees to any party. But by the United States Government or its officials as a party to the proceedings, shall not be awarded to them or by them to pay the appeal fee . In general, both the plaintiff and the defendant, as long as the victory can be exempt from litigation costs, the court also do not have to consider other factors. However, in the award of attorneys' fees, the court must consider whether the losing party is malicious.
(5) Criminal Relief
According to Article 506 of the US Copyright Act, criminal damages for copyright infringement: any person who intentionally infringes the copyright of others for commercial purposes or for personal money can be punished according to the Penal Code. The court may order the confiscation, destruction or otherwise disposition of all infringing copies, all machinery or equipment used to make infringing copies, when punishing an appeal for offenses.
 (1) the meaning of the right to network communication
In the White Paper published in September 1995, the United States Congress has explained the application of the five rights, such as the right to reproduction, interpretation, distribution, performance and right to show in the network, that these five rights and the right to network close relationship . About "performance rights", Article 101 of the US Copyright Act, by definition: Performing a work refers to the recitation, performance, playing, action or manner, either directly or in the performance of the device or process to work, or in relation to movies or Audio and video works, in a continuous manner to express their image or let people hear the sound. 
 (2) the EU and Japan on the right to network communication legislation status quo
The draft Copyright Directive, adopted by the European Commission on 9 June 2000, provides for the dissemination of works and performances, phonograms, films and radio programs on the Internet. Japan also amended its copyright law on June 10, 1997, which stipulates "the right to the public" in the category of copyright .
 (1) to help infringing
Help the infringement from the tort law, the basic meaning is that directly to help others infringement should bear legal responsibility. In general, to help infringement is developed by the enterprise's product responsibility, that is, enterprises should produce or provide for their own products bear some responsibility.
Case: Sony Corp of America V. Universal City Studios, Inc
The plaintiff in 1976 in the local court v. The defendant should bear the responsibility to tort, asked the court to prohibit Sony manufacturing and sales of home video recorders. The Supreme Court, by virtue of the provisions of the Patent Law, which is similar to the Copyright Act, draws the following conclusion: The sale of the reproduction equipment, like the sale of other products, does not constitute any help as long as the product is widely used for legal and unopposed purposes Infringement. It only needs to meet the main purpose for non-infringement purposes, then the manufacturer will be free from responsibility.
 (2) subrogation infringement
The concept of subrogation was first born in the case of Shapiro in 1963. In the case the defendant was the owner of a large chain store, and one of his tenants sold the infringing recordings . The Second Circuit Court of Appeals noted that the case involved was not an ordinary agent relationship. In spite of this, the court is responsible for the infringement of copyright by a third party who has not actually employed a direct infringer but who has received economic benefits from the conduct of the direct infringer.
According to the case, the chain and the tenant have a rental contract, the tenant should comply with the chain to develop all the management requirements. And according to the rental contract, the tenant shall pay 10% to 20% of the proceeds of the sale of the phonogram to the chain, indicating that the owner of the chain has received direct economic benefits from the infringing activities of others. The Shapiro case sets out two criteria for determining subrogation: one is that the subrogationhas the ability to stop the infringing activity and the other is the subrogation of the infringer from the infringing activity of others to obtain direct economic benefits.
 (3) to lure infringement
Network users can copy and transmit works on the web for a short period of time. The copyright owner is now facing a huge challenge because the copyright law protects the copyright owner against the development of technology against the copyright owner.
A special example of this technology is the P2P sharing software program. In the case of Grokste, the Supreme Court applied the principle of lure to infringement from patent law , believing that torture should be committed to third party infringement when a party promotes, misleads or lures the user to infringe copyright by selling the product. Through the judgment of the case, the principle of looting in the Grokster case did not seem to have allowed the user to reduce the infringement of copyright. In order to cater to the case of the Grokster case, these software designers are only required to meet the simple market demand principle: that is no longer produce goods that can be infringing .
The court in the Grokste case in the subtle balance of scientific and technological progress and the interests of the copyright owner, because the protection of the more works, the greater the damage to the enthusiasm of scientific and technological innovation.
3 The pecific performance of internet infringement
3.1 Infringement in electronic bulletin boards
With or without a formal copyright mark, almost all of the information published on the Internet and the bulletin board is copyrighted. By the court's decision on the recent Playboy picture case and the Saijia electronic game case, we can see that the court will be more inclined to protect the interests of copyright owners .
In the case of Playboy, the defendant was George Freiner, who was the operator of the electronic bulletin board. Users of the bulletin board can browse the different areas of the bulletin board and download the high-definition "Playboy" photo to their computer. Frenner acknowledges that the photo on the bulletin board does not have the authorization or consent of Playboy. But Frya pointed out that these photos are bulletin board users themselves uploaded to the bulletin board up. "Playboy" company to copyright infringement, trademark infringement and unfair competition on Litina filed a lawsuit. After receiving the notice, Freiner immediately removed all the Playboy photos from its bulletin board and began reviewing the bulletin board to prevent the user from uploading the Playboy photo.
The United States federal Florida Central Court finally found that Freiner violated the "Playboy" company's right to copy the right to display. The court also ruled that Freiner was responsible for unfair competition. Because Frya falsely instructed and described the origin of the Playboy photo, he deleted the text of the original playboy photo, and added his own text, including his name, phone number and so on .
3.2 The infringement problem in the operation method
Bo Blue Corporation in 1987 for the first time announced its first version of Express software, the software belongs to a spreadsheet program. In the version of the fast and fast 1.0 upgrade, the company is actually copying the whole content of the 1-2-3 menu tree of Furong. Although the screen display is slightly different from the hibiscus 1-2-3, but also provides a lot of Hibiscus 1-2-3 does not have the Bo Lan function, but still allows users to use the Bo Lan program interactive process feel and Use Hibiscus 1-2-3 is the same .
In July 1990, Furong Company filed a lawsuit against Blue Company. In 1992, the Massachusetts Federal District Court ruled on the case of Blue Company to determine that the menu structure of Furong was protected by copyright law. At the same time the court also found that Blue company violated the copyright of Furong .
After the verdict was made, many computer scientists told the US First Circuit Court of Appeals that if the decision was maintained, it would have a disastrous impact on the computer software industry. The First Circuit Court of Appeals affirmed many of their views in the final judgment. The First Circuit Court withdrew the judgment of the first instance and found that Blue Blue did not infringe the copyright of Furong.
3.3 Restrictions on access to the infringement
In the case of the science church, the plaintiff sued at the heart of Knight Kom Online Services and Clemsman's computer facilities, called "alt.religion.scientology (optics. Religion. Science)" Of the newsgroups, without authorization to publish a copy of the work of Habad (founder of the Science Sect) .
Science taught that Ehrlich had more than 200 violations, 90% of which were carried out through the Twentone online network service and the Clemsund computer facility, which were stored in the two systems 3 days and weeks time. At the same time, science taught allegations that Arshi had violated the court's provisional injunction on February 26, 1995, and released eight pages of information through two defendants' systems.
In the allegations against the two defendants, the science taught that the system was not only the equipment that was issued by Alice, nor that the two companies did not warn or even cancel the service for those who violated the rules.
Clemsman and Knight Kham argued that the ban on scientific education would weaken their service function. Science taught that Clemsman had the ability to remove certain personal users from its system in order to avoid the release of offensive, disgusting and inappropriate remarks. The company further pointed out that if the ban once released, the company will have to cut off with Clemsman and his connection of about 500 users, the ban on the harm caused by Knight Kom will greatly exceed the threat of scientific education is facing damage .
4 Conclusion
The further development of digital technology and the Internet will lead to new problems in copyright protection. In the face of the rapid development of digital network technology, the traditional copyright law has been an unprecedented challenge, the creation of works in the way of change, the performance of the work in the form of changes in the way the work of moral changes in the way. For digital music, network works, network software, the traditional copyright has been unable to explain, network service providers are also different from the past publishers. Old balance is broken need to establish a new balance, the old copyright protection system is clearly unable to meet the new needs, network communication rights, technical measures, rational use of new nouns, is the product of various interest games. Obviously, this will deepen the contradiction between copyright owners, Internet operators and Internet technology developers, Internet users. US copyright law can not completely solve these contradictions, the Supreme Court will introduce new legal and judicial jurisprudence to coordinate these issues, after all, technology is to develop, the user's reasonable use of the requirements must be met, so that only Sacrifice part of the interests of copyright owners to meet the needs of reality.
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