Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model

Chen Linbin

doi:doi:10.11648/j.ijls.20230601.12

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Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model

Chen Linbin

Published in International Journal of Law and Society (Volume 6, Issue 1)

Received: 1 December 2022 Accepted: 28 December 2022 Published: 9 January 2023

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Abstract

With the rapid development of cloud service industry in recent years, infringement disputes between right holders and cloud service platforms have become increasingly frequent, some of which cannot be solved by existing laws and regulations. Although Regulation for the Protection of the Right of Communication to the Public through Information Networks stipulates the “Notice and Takedown” rule, it is not entirely applicable to infringement disputes involving cloud service platforms. At present, the “Notice and Necessary Measures” rule in Tort Liability of the Civil Code of the People’s Republic of China is more applicable, in which “necessary measures” should be more broadly interpreted in order to counter the dilemma caused by legislative lags. In consideration of the characteristics and for the development of the cloud service industry, legislation should be more responsive and better balance the rights and obligations between right holders and cloud service platforms. In light of the above, this paper first reviews a few classic cases of disputes over cloud service platforms, and then analyzes the application of the “Notice and Necessary Measures” rule in current judicial practices, identifies problems that need to be improved on, and finally proposes the “Notice and Notice” measure to become a “necessary measure”. Upon receiving a qualified notice from the right holder, the cloud service platform should treat the notice of the right holder with prudence and reasonableness, and take corresponding “necessary measures” appropriate to its capacity to prevent the expansion of loss.

Published in	International Journal of Law and Society (Volume 6, Issue 1)
DOI	10.11648/j.ijls.20230601.12
Page(s)	10-15
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2023. Published by Science Publishing Group

Keywords

Cloud Service Platform, The “Notice and Takedown” Rule, Necessary Measures, Notice and Notice

References

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[3]	Liu Xiao, Ye Yu-hao. The Application Dilemma and Solution of “Safe Harbor Principle” in China under the Background of Civil Code [J]. Electronics Intellectual Property. 2022 (05): 28-38.
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[5]	Liu Wen-jie. Notice and Take-down Rules, Necessary Measures and Safe Harbour for ISP [J]. Electronics Intellectual Property, 2019 (04): 4-13.
[6]	Li Yang, Chen Shuo. Re-review of the “Notice and Takedown” Rule [J]. Intellectual Property, 2020 (01): 25-38.
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[8]	Lan Hao. The Dilemma and Solution of the "Notice-Take down" Rule of Intellectual Property in E-commerce [J]. Intellectual Property. 2020 (04): 53-65.
[9]	Wu Shan-xue. Legal Elements of a Valid Notice in Copyright Infringement over E-commerce Platforms: A Review on the Supreme Court’s No. 83 Guiding Case [J]. Intellectual Property. 2018 (01): 59-66.
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[11]	Yu Ting-ting. The Subjective Elements of Liability for Compensation After Issuing a Wrongful Notice During the “Notice and Takedown” Process [J]. Journal of Dalian Maritime University (Social Science Edition). 2020, 19 (06): 38-45.
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APA Style

Chen Linbin. (2023). Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model. International Journal of Law and Society, 6(1), 10-15. https://doi.org/10.11648/j.ijls.20230601.12

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ACS Style

Chen Linbin. Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model. Int. J. Law Soc. 2023, 6(1), 10-15. doi: 10.11648/j.ijls.20230601.12

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AMA Style

Chen Linbin. Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model. Int J Law Soc. 2023;6(1):10-15. doi: 10.11648/j.ijls.20230601.12

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@article{10.11648/j.ijls.20230601.12,
  author = {Chen Linbin},
  title = {Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model},
  journal = {International Journal of Law and Society},
  volume = {6},
  number = {1},
  pages = {10-15},
  doi = {10.11648/j.ijls.20230601.12},
  url = {https://doi.org/10.11648/j.ijls.20230601.12},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20230601.12},
  abstract = {With the rapid development of cloud service industry in recent years, infringement disputes between right holders and cloud service platforms have become increasingly frequent, some of which cannot be solved by existing laws and regulations. Although Regulation for the Protection of the Right of Communication to the Public through Information Networks stipulates the “Notice and Takedown” rule, it is not entirely applicable to infringement disputes involving cloud service platforms. At present, the “Notice and Necessary Measures” rule in Tort Liability of the Civil Code of the People’s Republic of China is more applicable, in which “necessary measures” should be more broadly interpreted in order to counter the dilemma caused by legislative lags. In consideration of the characteristics and for the development of the cloud service industry, legislation should be more responsive and better balance the rights and obligations between right holders and cloud service platforms. In light of the above, this paper first reviews a few classic cases of disputes over cloud service platforms, and then analyzes the application of the “Notice and Necessary Measures” rule in current judicial practices, identifies problems that need to be improved on, and finally proposes the “Notice and Notice” measure to become a “necessary measure”. Upon receiving a qualified notice from the right holder, the cloud service platform should treat the notice of the right holder with prudence and reasonableness, and take corresponding “necessary measures” appropriate to its capacity to prevent the expansion of loss.},
 year = {2023}
}

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TY  - JOUR
T1  - Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model
AU  - Chen Linbin
Y1  - 2023/01/09
PY  - 2023
N1  - https://doi.org/10.11648/j.ijls.20230601.12
DO  - 10.11648/j.ijls.20230601.12
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 10
EP  - 15
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20230601.12
AB  - With the rapid development of cloud service industry in recent years, infringement disputes between right holders and cloud service platforms have become increasingly frequent, some of which cannot be solved by existing laws and regulations. Although Regulation for the Protection of the Right of Communication to the Public through Information Networks stipulates the “Notice and Takedown” rule, it is not entirely applicable to infringement disputes involving cloud service platforms. At present, the “Notice and Necessary Measures” rule in Tort Liability of the Civil Code of the People’s Republic of China is more applicable, in which “necessary measures” should be more broadly interpreted in order to counter the dilemma caused by legislative lags. In consideration of the characteristics and for the development of the cloud service industry, legislation should be more responsive and better balance the rights and obligations between right holders and cloud service platforms. In light of the above, this paper first reviews a few classic cases of disputes over cloud service platforms, and then analyzes the application of the “Notice and Necessary Measures” rule in current judicial practices, identifies problems that need to be improved on, and finally proposes the “Notice and Notice” measure to become a “necessary measure”. Upon receiving a qualified notice from the right holder, the cloud service platform should treat the notice of the right holder with prudence and reasonableness, and take corresponding “necessary measures” appropriate to its capacity to prevent the expansion of loss.
VL  - 6
IS  - 1
ER  -

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Author Information

Chen Linbin

The Graduate School of Law, Jiangsu University, Zhenjiang, China

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Plain Text BibTeX RIS

APA Style

Chen Linbin. (2023). Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model. International Journal of Law and Society, 6(1), 10-15. https://doi.org/10.11648/j.ijls.20230601.12

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ACS Style

Chen Linbin. Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model. Int. J. Law Soc. 2023, 6(1), 10-15. doi: 10.11648/j.ijls.20230601.12

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AMA Style

Chen Linbin. Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model. Int J Law Soc. 2023;6(1):10-15. doi: 10.11648/j.ijls.20230601.12

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@article{10.11648/j.ijls.20230601.12,
  author = {Chen Linbin},
  title = {Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model},
  journal = {International Journal of Law and Society},
  volume = {6},
  number = {1},
  pages = {10-15},
  doi = {10.11648/j.ijls.20230601.12},
  url = {https://doi.org/10.11648/j.ijls.20230601.12},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20230601.12},
  abstract = {With the rapid development of cloud service industry in recent years, infringement disputes between right holders and cloud service platforms have become increasingly frequent, some of which cannot be solved by existing laws and regulations. Although Regulation for the Protection of the Right of Communication to the Public through Information Networks stipulates the “Notice and Takedown” rule, it is not entirely applicable to infringement disputes involving cloud service platforms. At present, the “Notice and Necessary Measures” rule in Tort Liability of the Civil Code of the People’s Republic of China is more applicable, in which “necessary measures” should be more broadly interpreted in order to counter the dilemma caused by legislative lags. In consideration of the characteristics and for the development of the cloud service industry, legislation should be more responsive and better balance the rights and obligations between right holders and cloud service platforms. In light of the above, this paper first reviews a few classic cases of disputes over cloud service platforms, and then analyzes the application of the “Notice and Necessary Measures” rule in current judicial practices, identifies problems that need to be improved on, and finally proposes the “Notice and Notice” measure to become a “necessary measure”. Upon receiving a qualified notice from the right holder, the cloud service platform should treat the notice of the right holder with prudence and reasonableness, and take corresponding “necessary measures” appropriate to its capacity to prevent the expansion of loss.},
 year = {2023}
}

Copy | Download

TY  - JOUR
T1  - Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model
AU  - Chen Linbin
Y1  - 2023/01/09
PY  - 2023
N1  - https://doi.org/10.11648/j.ijls.20230601.12
DO  - 10.11648/j.ijls.20230601.12
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 10
EP  - 15
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20230601.12
AB  - With the rapid development of cloud service industry in recent years, infringement disputes between right holders and cloud service platforms have become increasingly frequent, some of which cannot be solved by existing laws and regulations. Although Regulation for the Protection of the Right of Communication to the Public through Information Networks stipulates the “Notice and Takedown” rule, it is not entirely applicable to infringement disputes involving cloud service platforms. At present, the “Notice and Necessary Measures” rule in Tort Liability of the Civil Code of the People’s Republic of China is more applicable, in which “necessary measures” should be more broadly interpreted in order to counter the dilemma caused by legislative lags. In consideration of the characteristics and for the development of the cloud service industry, legislation should be more responsive and better balance the rights and obligations between right holders and cloud service platforms. In light of the above, this paper first reviews a few classic cases of disputes over cloud service platforms, and then analyzes the application of the “Notice and Necessary Measures” rule in current judicial practices, identifies problems that need to be improved on, and finally proposes the “Notice and Notice” measure to become a “necessary measure”. Upon receiving a qualified notice from the right holder, the cloud service platform should treat the notice of the right holder with prudence and reasonableness, and take corresponding “necessary measures” appropriate to its capacity to prevent the expansion of loss.
VL  - 6
IS  - 1
ER  -

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