The user’s report said that a game similar to “My name is MT Online” was found on a website, “My name is MT Changshuang”. Let’s go to a good person, and it’s not surprising. This game is not only similar in name to its own company, but also almost identical in game content. After comparing the content, Ledong Excellence believes that “My name is MT Changshuang Edition” is a complete private service, which constitutes a serious violation of its copyright.
But the trouble is that although they found that someone had violated their rights, they didn’t know who did it all—through various means, they couldn’t find out where the operator of the site was sacred. . The only investigation is that the infringer stored the game content of “My name is MT Cool Edition” on Alibaba Cloud’s server, and provided the game service to the user through the server. In order to stop the infringement and find out the infringer, Ledong Excellence sent a letter to Alibaba Cloud to remove the allegedly infringing content and provide specific information about the server hirer. However, this request for music excellence was rejected by Alibaba Cloud. Alibaba Cloud gives the reason that as a cloud service provider, it must pay attention to protecting users’ data and privacy.
Several negotiations have been fruitless, and Leo’s excellence has simply brought Alibaba to the court. Asked the court to order Alibaba Cloud to disconnect the link, stop providing the server rental service for the game “My name is MT Changshuang Edition”, and provide the game database information of “My name is MT Changshuang Edition” stored on its server. The company is a company of excellence, and at the same time compensates for the outstanding economic loss of 1 million yuan.
If the infringer is not successful, the person who provided the cloud service to the infringer will be stunned. This dispute caused by private service has dramatically evolved into a “cloud storage first case” at a coincident time.
After the case was exposed, it caused widespread controversy. According to some viewpoints, according to the “Notice-Delete” rule, Alibaba Cloud should agree to the demands of the music, and should compensate the losses caused by the delay due to the delay.
Here we take a moment to explain the “Notification-Delete” rule. This rule first appeared in the United States’ Digital Millennium Copyright Act (DMCA) in 1998. It was intended to create a circumvention responsibility for network service providers in the context of the proliferation of online infringement disputes. haven”.
According to this rule, after receiving the notification from the right holder, the network service provider shall take measures to delete or disconnect the infringing information content, otherwise it will be jointly and severally liable for the infringement. Immediately after this rule was put forward, it had a great impact on a global scale. Later, in the “Copyright Law” and “Regulations on the Protection of Information Network Rights” in China, the spirit of this rule was embodied.
Many people believe that Alibaba Cloud as a network service provider should apply “Most of the various types of disputes between industries occur between each other. Infringement and infringement are directly related. However, after the company has chosen “Shangyun”, the relationship has changed, and all disputes involve the provider of cloud services. Like the above mentioned music move, the Alibaba Cloud case, and the so-called “First WeChat Small Program”, the Bean Company v. Tencent (note: the small program service platform is also a cloud service in nature, belonging to the PaaS category). All of them involve cloud service providers, and they have also caused a lot of social concerns and disputes.
When disputes involving cloud services began to appear frequently, there is no clear certainty about the cloud in the current law. In this context, it is really not easy to determine the role of cloud service providers in specific environments and to determine their responsibilities.
So, how do we determine the responsibility of the cloud service provider in the event of a dispute? In my opinion, we should not hope that the law will classify and have operative guidance in the short term. There are two reasons for this –
On the one hand, the delivery model of cloud computing is extremely diverse, and classification is difficult to exhaust. Cloud computing is essentially the onlineization of IT resources, and the types of IT resources are very diverse – network, storage, servers, virtualization, operating systems, middleware, runtime, data, applications… IT resources, according to different combinations of online resources, cloud computing delivery models can be ever-changing. The familiar IaaS, PaaS, and SaaS are just a few of them, and there are many other “atypical” delivery models. If you go according to the delivery model of cloud computing one by one, it is “to the endless pursuit of the endless”, the workload is imaginable.
On the other hand, the specific problems faced in different situations are different. In the “cloud storage first case”, the relationship between Leyun Excellence and the infringer is simply a relationship between the right holder and the infringer. Therefore, it may be reasonable for Aliyun to reject the demand for excellence in order to protect the privacy of the user. But if the relevant dispute involves major issues like public safety, then this approach may no longer meet the requirements.
Based on the above two points, when dealing with related issues involving cloud computing, it may be difficult to define a clear role for cloud service providers in accordance with the relevant laws and regulations, as in the case of traditional Internet-related cases. Follow the “Notification-Delete” rule or any other rule to compare them one by one.
So, how should we define the responsibility of cloud service providers for similar disputes? In my opinion, there are two rules that I might be able to refer to: the first is “can”; the second is “value is not worth.”
Technical Standards – “Can’t”
The so-called “can” means that cloud service providers can directly control the IT resources involved in the dispute.
Although as we pointed out earlierBusinesses can’t directly control the cloud delivery model of content production, so that the service provider can delete the relevant content after receiving the complaint as specified in the “Notice-Delete” rule. If it is not impossible, the cost is huge. From this perspective, we should not give too many tasks to cloud service providers, otherwise it may hinder the healthy development of the entire cloud service industry.
However, this question only takes into account half of the problem, that is, taking care of cloud service providers. In reality, the right holders who suffer from infringement are often very helpless. Since the information involved is on the cloud, it is difficult for them to obtain effective forensics without the help of cloud service providers. For example, in the case of Ledong Excellence v. Alibaba Cloud, it is not even known who is setting up a private service to infringe on its own interests. In this case, it is of course difficult to make effective notice to Alibaba Cloud; Come, it has formed a paradox: it is difficult for right holders to issue effective notices because it is difficult to obtain evidence. Because cloud service providers do not receive valid notifications, it is difficult to respond promptly to infringement issues.
If this paradox does not break, then even if we unilaterally guarantee the interests of cloud service providers and let the industry develop, it is also a bad, dirty industry, and there is no hope.
So, how should the above problem be solved? It is important to establish a direct communication channel between the complainant and the respondent and establish a “anti-notification” mechanism. Specifically, when a cloud service provider receives a complaint, it should forward the complaint to the party being complained and ask it to respond to the complaint in a timely manner. The cloud service provider can judge the relevant problem according to the counter notification provided by the respondent, and then make a decision. When necessary, cloud service providers can apply for help and involvement from the judiciary.
For example, in the case of Leyun Excellence v. Alibaba Cloud, Alibaba Cloud can transfer the complaints about the excellence of music to the owner of the private service, and ask him to explain the situation, otherwise he will stop serving. If there is such communication, then Alibaba Cloud can avoid the later lawsuits, and can also stop the violation of private entertainment in a timely manner. In fact, due to the difficulty of obtaining evidence, the private service builder Ou was arrested two years after the discovery of the problem, and during this period, his loss to the excellence of music was originally avoided.