关键词:  , 网络服务提供者, 间接侵权, 侵权免责, 数字好撒马利亚人

Abstract: The international community generally adopts a stance of “immunity as the rule, liability as the exception” regarding the indirect infringement by Internet service providers. While existing legislation in China can serve the function of immunity, it is not strictly an immunity regime. This is mainly due to imposing a general duty of care on Internet service providers and making joint liability the legal consequence of breaching this duty. Following the logic of immunity does not mean providing Internet service providers with more opportunities to shirk responsibility. On the contrary, through a “digital good Samaritan” mechanism, the immunity regime encourages Internet service providers to voluntarily participate in the governance of the Internet ecosystem, thus creating a more flexible policy space for them. When determining the subjects of immunity, it is advisable to limit their scope to Internet service providers which engage in intermediary services and to use “material contribution” rather than “editorial function” as the criteria for losing immunity eligibility. Finally, it is recommended that China should establish a vertical immunity standard based on the different nature of online content and Internet services.

Key words:  Internet service providers, indirect infringement, liability immunity, digital good Samaritan