Page 18 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 1 Introduction
An Intermediary-oriented Approach

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2003 copyright owners have begun to take enforcement actions against individual users.
However, this strategy is also doomed to fail due to the diffusion of the end users and the
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minimal damage each user creates. Most importantly, a large proportion of UGCs are
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created for sharing rather than commercialisation, thereby undermining the justification
for imposing liability on users. The difficulty of gaining ex-post remuneration from either
UGC platforms or UGC creators is spurring copyright owners to adopt ex-ante measures and
extra-legal privileges: blocking access to copyrighted material or removing UGCs through
takedown notices.
UGC platforms have often been regarded as the biggest winner in the digital copyright
war because they profit from content and are exempt from liability. However, the courts have
not consistently applied the core concepts of the safe harbour doctrine, which has created
uncertainty for the platforms. UGC platforms have invested heavily in a range of services
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that have promoted the production, distribution and commercialisation of UGCs. Although
individual UGCs may have only marginal value, aggregated UGCs have significant value
in the context of big data algorithms. However, aggregated UGCs have been subject to the
web scraping of UGC platforms; the boundary between lawful and unlawful scraping
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20 ‘The RIAA had begun testing the DMCA subpoena power in 2003, when it delivered a few subpoenas to a variety of ISPs in
what was widely viewed as a “test run”’. (Electronic Fronter Foundation (EFF), ‘RIAA v. The People: Five Years Later’ (30
September 2008) <https://www.eff.org/wp/riaa-v-people-five-years-later> accessed 13 May 2009) ‘The RIAA announced
on June 25 [2003] that it would be gathering evidence in order to bring lawsuits in September against unauthorized P2P file
distributors. On September 8, 2003 RIAA member companies filed copyright infringement claims against 261 individual
file sharers.’ (RIAA, ‘Recording Industry Begins Suing P2P Filesharers Who Illegally Offer Copyrighted Music Online’ (8
September 2003) <https://tech-insider.org/internet/research/2003/0908.html> accessed 13 May 2019) In October 2003, ‘the
RIAA sent 204 notification letters to egregious file sharers’. (‘NEWSLINE: The Week in Brief’ Billboard (New York, 8
November 2003) 8)
21 There is not a uniformed definition of end users. Literally speaking, end-user are the ones at the end of the distribution
chain. However, this definition can not be tailored to the UGC age where every end user has the capacity to engage in
secondary creation based on pre-existing works and distribute their own creations at marginal zero cost. That is why they
are called prosumer, that is, the convergence of users and producers. Jane Ginsburg distinguish end users from creative or
transformative users (Jane Ginsburg, ‘Authors and Users in Copyright’ (1997) 45 Journal of the Copyright Society of the
U.S.A. 1, 6). Similarly, Jonathan Dowell distinguishes end-users from secondary-users (Jonathan Dowell, ‘Bytes and Pieces:
Fragmented Copies, Licensing, and Fair Use in a Digital World’ (1998) 86 California Law Review 843, 874–76). Giuseppe
Mazziotti distinguishes end users from establishment users, including noncommercial and commercial establishments
(Giuseppe Mazziotti, EU Digital Copyright Law and the End-User (Springer 2008) 122, note 312).
I define end users from the effect of the use. I refer end user to individual users whose use would not conflict with normal
exploitation of copyrighted works. Users for consumptive use and users for transformative use can both be categorized as end
users, as long as their use does not compete with the copyright owner’s normal exploitation of the work. Therefore, I consider
non-commercial UGC creators under the levy schemes proposed by this thesis in the category of end users, just as private
copiers under the existing private copying levy schemes do.
22 See supra note 10.
23 For example, there is still vigorous debate over whether manual screening by the online intermediary to weed out infringing
activities and how much manual intervention would result in the failure to meet the condition to be shielded by the safe
harbor doctrine. Compare CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004) and Mavrix Photographs, LLC
v. LiveJournal, Inc., No. 14-56596 (9th Cir. 2017). See also Matthew Sag, ‘Internet Safe Harbors and the Transformation of
Copyright Law’ (2017) 93 Notre Dame Law Review 499, 509. Edward Lee, ‘Decoding the DMCA Safe Harbors’ (2008) 32
Columbia Journal of Law and Arts 233, 260 (‘Uncertainty defeats the whole purpose of a safe harbor because companies are
unable to identify the necessary steps to avoid liability.’); Section 3.4.2.
24 Web scraping normally refers to the automated process of copying data from a website through a robot or web crawler. See
notes 3~7 in Chapter 6 and accompanying text.

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