Page 75 - 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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material, such as in the Ellison and Wolk cases. Recently, the Ninth Circuit proposed an
even more exacting standard, emphasising the ISP’s general practices rather than its conduct
towards a specific infringement. 80
5) Inducement liability
Apart from contributory liability and vicarious liability, the safe harbour doctrine
included a third layer, inducement liability, to make sure that ISPs merely provided passive,
technical and content-neutral service to enable the distribution of content. Contributory
liability and vicarious liability have their roots in traditional common law, whereas
inducement liability is unique to digital copyright and cannot be found elsewhere. Further,
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inducement liability is created by case law without being explicitly manifested in statutes.
The lack of historical experience and legislative discussion partly explain the mysteries
surrounding inducement liability. As Niva Elkin-Koren observed, the elements required to
establish inducement liability are mostly the same as the elements that establish contributory
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and vicarious liability. Rather than creating an independent category of secondary liability,
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inducement liability is ‘a super-category of liability based on overreaching principles’.
Consequently, I would not analyse inducement liability independently.
6) Authorisation: Other jurisdictions
Other jurisdictions, whether they have a specific ISP safe harbour rule (such as Australia)
or not (such as Canada), have heavily relied on the authorisation doctrine to determine
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whether an ISP could be exempted from copyright infringements committed by its user(s).
‘Authorisation’ refers to ‘the granting or purporting to grant a right’ and excludes ‘mere
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enablement, assistance, facilitation or even encouragement of copyright infringement’.
The courts have generally adopted the ‘sanction, approve and countenance’ test to examine
whether ISPs have authorised the infringing activity, or ‘explicitly or implicitly purport[ed]
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to approve infringing conduct’ or ‘authorise[d] users to commit copyright infringement’.
A study comparing the safe harbour doctrine in the US and EU, found that the authorisation
element was even more difficult to demonstrate than elements under the DMCA such as
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‘knowledge’, ‘the right and ability to control’ and ‘the direct financial benefit’.
th
78 Ellison v. Robertson, 357 F.3d 1072, 1078 (9 Cir. 2004).
79 Wolk v. Kodak Imaging Network, Inc., 840 F. Supp. 2d 724, 748 (S.D.N.Y. Jan. 3, 2012).
th
80 Mavrix Photographs, LLC v. Livejournal, Inc., 873 F.3d 1045, 1059 (9 Cir. 2017).
81 MGM Studios Inc. v. Grokster, Ltd., 125 S. Ct. 2764, 2780 (2005) (majority opinion).
82 Elkin-Koren, ‘Making Technology Visible’ (n 32) 52.
83 Ibid 51.
84 David Brennan, ‘ISP Liability for Copyright Authorisation: The Trial Decision in Roadshow Films v iiNet’ [2008] Melbourne
Law School Legal Studies Research Paper No 475 1, 3; Christina Angelopoulos, ‘Beyond the Safe Harbours: Harmonising
Substantive Intermediary Liability for Copyright Infringement in Europe’ (2013) 3 Intellectual Property Quarterly 253, 255.
85 Angelopoulos (n 84) 256.
86 Financial Intelligence Unit v Cyber Space Ltd., (2014) 1 LRC 177 at 183.
87 Fara Tabatabai, ‘A Tale of Two Countries: Canada's Response to the Peer-to-Peer Crisis and What It Means for the United
States’ (2004) 73 Fordham Law Review 2321, 2354.

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