Page 72 - 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

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of [users] of the service provider’s system or network who are repeat infringers’. The
requirement under the notice and takedown rule also signifies that ISPs reserve the right
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and ability to remove the putatively infringing material. Nevertheless, under the vicarious
liability rule, once an ISP has the ‘right and ability to control the infringing activity’, it has
one foot in secondary infringement.
Congress did not provide an answer to this ‘confusing, self-contradictory catch-22
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situation’. The problem was first addressed in Hendrickson, which clarified that ‘the
“right and ability to control” the infringing activity…cannot simply mean the ability of
a service provider to remove or block access to materials posted on its website or stored
in its system’. This argument has been widely followed and it has become a general
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understanding that the ISP must have substantial control over the infringing content rather
than the mere ability to remove or disable access to the material.
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However, generally accepted guidelines on the ‘substantial control’ standard have been
lacking. The Hendrickson case held that active involvement in the ‘listing, bidding, sale and
delivery of any item offered for sale on its website’ was enough to demonstrate ‘the right and
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control’ the ISP had over the infringing activity. Nevertheless, the standard of ‘substantial
control’ increased in later cases. For example, in Corbis v. Amazon, the court found that
‘substantial control’ consists of ‘edit[ing] the product descriptions...suggest[ing] prices...or
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otherwise involv[ing] itself in the sale’. In recent years, the courts have found that ‘editing
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and marketing’ are not enough to prove ‘substantial control’. An ISP should have the ability
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to ‘filter’, ‘police’, ‘produce’ or ‘alter’ the information.
48 17 U.S. Code§512(i)(1)(A).
49 17 U.S. Code § 512 (b)(2)(E), § 512 (c)(1)(C), § 512 (d)(3).
50 Christopher Wolf, Digital Millennium Copyright Act: Text, History, and Caselaw (Pike & Fischer 2003) 830.
51 Robert Hendrickson v. Ebay, Inc., et al., 165 F. Supp. 2d 1082, 1093 (C.D. Cal. 2001).
52 e.g., CoStar Group Inc. v. LoopNet Inc., 164 F. Supp. 2d 688, 704 (D. Md. 2001); Ellison v. Robertson, 189 F. Supp. 2d 1051,
1060-1061 (C.D. Cal. 2002); Perfect 10 v. CCBill, 340 F. Supp. 2d 1077, 1098 (C.D. Cal. 2004); Corbis Corp. v. Amazon.
Com, Inc., 351 F. Supp. 2d 1090,1110 (W.D. Wash. 2004); Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020, 1046
th
th
(9 Cir. 2013); UMG Recs. v. Veoh Networks, 718 F.3d 1006, 1027, 1030 (9 Cir. 2013); Capitol Records, LLC v. Vimeo, 972
F. Supp. 2d 537 (S.D.N.Y. 2013); Greg Young Publishing, Inc. v. Zazzle, Inc., at 20, 2017 WL 2729584 (C.D. Cal. May 1,
2017); Mavrix Photographs, LLC v. Livejournal, Inc., 873 F.3d 1045, 1058 (2017); Ventura Content v. Motherless, 885 F.3d
597, 613 (9 Cir., 2018).
th
53 Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082, 1092 (C.D. Cal. 2001).
54 Corbis Corp. v. Amazon. Com, Inc., 351 F. Supp. 2d 1090, 1110 (W.D. Wash. 2004)
55 Steven M. Gardner, v. CafePress Inc., at 9 (Case No. 3:13-cv-1108-GPC-JMA) 2014; Venus Fashions, Inc. v. ContextLogic,
Inc., No. 3:16-CV-907-J-39MCR, 2017 U.S. Dist., LEXIS 155748, at 36 (M.D. Fla. Jan. 17, 2017); Mavrix Photographs,
LLC v. Livejournal, Inc. 873 F.3d 1045, 1058 (2017); Greg Young Publishing, Inc. v. Zazzle, Inc., at 27, 2017 WL 2729584
(C.D. Cal. May 1, 2017).
56 Tur v. YouTube, Inc., 2007 U.S. Dist. LEXIS 50254, 2007 WL 1893635, at *3 (C.D. Cal. June 20, 2007).
57 Io Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1152 (N.D. Cal. 2008).
58 Steven M. Gardner, vs. CafePress Inc., at 9 (Case No. 3:13-cv-1108-GPC-JMA) 2014; Greg Young Publishing, Inc. v. Zazzle,
Inc., at 27, 2017 WL 2729584 (C.D. Cal. May 1, 2017).
59 Venus Fashions, Inc. v. ContextLogic, Inc., No. 3:16-CV-907-J-39MCR, 2017 U.S. Dist., LEXIS 155748, at 36 (M.D. Fla.
Jan. 17, 2017).

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