Abstract:

The “directly receiving a financial benefit” clause， based on the theory of retributive justice， possesses an independent legal status within the normative system of duty of care and inherently adheres to the doctrine of fault liability. However， the lack of guidance in the normative substance has led to significant deviations in its judicial application. Courts have not only used this clause to break through the safe harbor rules， effectively imposing copyright review obligations through the “higher duty of care”， but have also required internet service providers to bear indirect infringement vicarious liability under the no-fault liability doctrine. From a local perspective， the application logic of this clause urgently needs correction， and its scope for application must be narrowly construed. Determination of fault should be based on the “direct profit-making conduct” that satisfies the requirements of informational proximity， rather than the “direct profit-making outcome” required by the American model of vicarious liability. To achieve retributive justice， internet service providers may be required to implement reasonable measures to prevent infringement， with economic costs commensurate to the “amount of direct profit”， rather than imposing copyright review obligations. This approach would scientifically activate the intended normative function of the “directly receiving a financial benefit” clause.

Key words: internet copyright, directly receiving a financial benefit, higher duty of care, vicarious liability, fault liability, copyright review