Page 70 - 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 3 Copyright Rules for Online Intermediaries: From Safe Harbour to a New Intermediary Liability Scheme
An Intermediary-oriented Approach

as a vicarious infringer if it received a financial benefit directly attributable to an infringing
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activity it had the right and ability to control. If the service the ISP provided was intended
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to allow users to infringe, it could amount to inducement liability. I will now delve into the
elements that establish secondary liability to demonstrate that the copyright laws in Web 1.0
formulated a robust safe harbour within which to promote network technologies.
2) Knowledge of the infringement
ISPs should not have knowledge of the infringement otherwise contributory liability
is triggered. ‘Knowledge of the infringement’ can be divided into two limbs. The first
is actual knowledge, which usually comes from copyright owners’ notices. What has
spawned considerable debate is the second category of knowledge, ‘aware[ness] of facts
or circumstances from which infringing activity is apparent’. From the perspective of
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semantics, ‘apparent’ is defined as ‘(1) readily seen; exposed to sight; open to view; visible;
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(2) capable of being easily perceived or understood; plain or clear; obvious’. Therefore,
only when it is ‘plain, clear, or obvious’ from the facts or circumstances that an infringement
has occurred, can a person become ‘aware of facts or circumstances from which infringing
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activity is apparent’. Hoping to provide ‘greater certainty to [ISP]s concerning their legal
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exposure for infringements that may occur in the course of their activities’, the US Senate
and the House Committee reports have upheld the high standard of knowledge, claiming
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that infringement should be ‘obvious’ or ‘clear’ to become ‘apparent’. According to the
reports, awareness of the facts from which the infringing activity became apparent, can be
shown if ‘the location was clearly, at the time the directory provider, a “pirate” site … that [is]
obviously infringing because [it] typically use[s] words such as “pirate”, “bootleg” or slang
terms … to make their illegal purpose obvious to the pirate directories and other Internet
users’. The reports compared apparent infringements to ‘red flags’, which were the origin
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of ‘red flag’ theory under which ‘a service provider would have no obligation to seek out
copyright infringement, but it would not qualify for the safe harbour if it had turned a blind

31 17 U.S. Code § 512 (c).
32 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 932 (2005). However, the inducement liability has been criticised as
‘a super-category of liability based on overreaching principles’ jbecause the elements required to prove inducement are
essentially the same as, or even more than, the elements needed to establish contributory and vicarious liability. Niva Elkin-
Koren, ‘Making Technology Visible: Liability of Internet Service Providers for Peer-to-Peer Traffic’ (2005) 9 N.Y.U. Journal
of Legislation & Public Policy 15, 51.
33 17 U.S. Code § 512 (c)(1)(A)(ii).
34 Random House Webster’s Unabridged Dictionary 100 (2nd edn, Random House, 2001). Actually, the dictionary provides
a third meaning of ‘apparent’: ‘(3) according to appearances, initial evidence, incomplete results, etc.; ostensible rather
than actual’. However, as Edward Lee argued, this meaning did not apply to the DMCA context according to the legislative
history. Edward Lee, ‘Decoding the DMCA Safe Harbors’ (2008) 32 Columbia Journal of Law & the Arts 233, 258.
35 Ibid.
36 S. Rept.105-190, at 40 (emphasis added) (1998); see also, H.Rept.105-551(II), at 49-50 (1998).
37 S. Rept.105-190, at 48-49 (1998); H. Rept.105-551 (II), at 57-58 (1998).
38 S. Rept.105-190, at 48-49 (1998); H. Rept.105-551 (II), at 57-58 (1998).

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