Page 74 - 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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for the value of the service tied to the provision of access to the infringing material, after
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a variety of examples that could not be regarded as such direct benefits. This suggests that
Congress preferred a narrow scope of ‘direct financial benefits’.
Vicarious liability under the common law has a profit element that is similar to the DMCA
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safe harbour doctrine. The difference in statutory wording suggests that the DMCA has a
more stringent standard for establishing vicarious liability than the common law. The term
‘financial benefit’ used in the DMCA has a higher level of realisation of future revenue than
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the ‘financial interest’ used in the common law. Further, ‘directly attributable to the infringing
activity’ involves ‘a higher level of proof and causation than required under the common law’.
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Case law has reflected such differences in wording. For example, the courts have
required the infringing activities to be a ‘draw’ for users rather than simply an added benefit
or something that has enhanced attractiveness to users. A draw should involve a causal
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connection between the ISP’s profits and the infringing activity. The causal relationship
can be demonstrated if the ISP’s advertising revenue was directly dependent on the size of
its user base and the user base expanded due to the increasing quality and quantity of the
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infringing material, such as in the cases of Napster and Fung. The causal relationship
can also be established if the ISP’s subscription came directly from the available infringing
material, or if the ISP’s subscription was cancelled due to the unavailability of the infringing

69 S. Rept. 105-190, at 45 (1998); H. Rept. 105-551 (I), at 25-26 (1998); H. Rept. 105-551 (II), at 54 (1998).
70 The congressional reports clarified that receiving a one-time set-up fee, flat periodic payments or fees based on the length
of the message from a person engaging in infringing activities would not constitute a ‘financial benefit directly attributable
to the infringing activity’. Neither would an ISP that conducted a legitimate business with the same kind of payment from
infringing and non-infringing users be regarded as receiving a ‘direct financial benefit’. S. Rept. 105-190, at 44-45 (1998); H.
Rept. 105-551 (I), at 25-26 (1998); H. Rept.105-551 (II), at 54 (1998).
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71 E.g., Ellison v. Robertson, 357 F.3d 1072, 1078 (9 Cir. 2004); Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102, 1117, 1118 (9th
Cir. 2007); Io Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132,1150 (N.D. Cal. 2008); Mavrix Photographs, LLC v.
Livejournal, Inc. 873 F.3d 1045, 1058 (2017).
72 Lee, ‘Decoding the DMCA Safe Harbors’ (n 34) 245.
73 Ibid.
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74 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1023 (9 Cir. 2001); Ellison v. Robertson, 357 F.3d 1072, 1079 (9 Cir.
2004); Columbia Pictures Industries, Inc. v. Fung 710 F.3d 1020, 1044 (9 Cir. 2013); Hempton v. Pond5, Inc. et al., 3:15-cv-
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05696-BJR, at 28-29 (W.D. Wash. Jan. 13, 2017); Arista Records LLC v. Myxer Inc., Case No. CV 08–3935–GAF (JCx),
2011 U.S. Dist. LEXIS 109668 at 93 (C.D. Cal. April 1, 2011). CoStar Group Inc. v. LoopNet Inc., 164 F. Supp. 2d 688, 705
(D. Md. 2001). (‘enhanc[ing] the attractiveness of the venue to potential customers’ merely represents an indirect benefit).
75 Ellison v. Robertson, 357 F.3d 1072, 1079 (9th Cir. 2004); Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102, 1117, 1118 (9th
Cir. 2007); Columbia Pictures Industries, Inc. v. Fung 710 F.3d 1020, 1044 No. 10-55946 (9th Cir. 2013); Venus Fashions,
Inc. v. ContextLogic, Inc., Case No. 3:16-cv-907-J-39MCR 2017 U.S. Dist. LEXIS 155748, at *72 (M.D. Fla. Jan. 17, 2017);
Arista Records LLC v. Myxer Inc., Case No. CV 08–3935–GAF (JCx), 2011 U.S. Dist. LEXIS 109668 at 93 (C.D. Cal. April 1,
2011); Perfect 10, Inc. v. Google, Inc., No.CV 04 9484 AHM (SHx), at 27 (C.D. Cal. 2010); Oppenheimer v. Allvoices, Inc.,
No. C 14-499 LB, 2014 U.S. Dist. LEXIS 80320, at *13-18 (N.D. Cal. June 10, 2014); BMG Rights Mgmt. (US) LLC v. Cox
Communications, Inc., 149 F. Supp. 3d 634, 675 (E.D. Va. 2015); BWP Media USA V. Clarity Digital Group, No. 14-CV-
00467-PAB-KMT, 2016 WL 1222906, at 31 (D. Col. Mar. 29, 2016).
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76 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1023 (9 Cir. 2001).
77 Columbia Pictures Industries, Inc. v. Fung 710 F.3d 1020, 1045 (9th Cir 2013).

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