Page 78 - 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

transferred between computers rather than downloaded from a central server. Previous ISPs
all adopted a client-server network within which a server transits, caches, hosts and locates
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information at the request of the clients. It was a centralised technological infrastructure.
98
All information was managed and stored by the server. The clients merely provided the
99
facilities for users to access the information stored on the remote server. Conversely, in
a P2P infrastructure, each node can act as both the server and client. Each node can store
information and transfer information in other nodes. As some courts have pointed out,
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P2P was ‘not even a glimmer in anyone’s eye when the DMCA was enacted’. Thus, the
applicability of the safe harbour doctrine to P2P providers has remained unclear in the US
and other jurisdictions.
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1) US
The US courts have not yet applied the DMCA safe harbour doctrine to ISPs providing
P2P service. The pioneering case on P2P providers’ eligibility for the safe harbour doctrine
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was Napster. As the first widely used P2P sharing service provider, Napster attracted
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lawsuits by major recording labels. Napster invoked the DMCA safe harbour doctrine
as a defence, but the district court did not give it any weight, finding that Napster ‘has
failed to persuade this court that subsection 512(d) shelters contributory infringers’.
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Although the Ninth Circuit court clarified that ‘potential liability for contributory and
vicarious infringement would not render the DMCA inapplicable per se’, it held that the
substantial issue of whether safe harbour could be applied to P2P providers would be more
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fully developed at trial. Nevertheless, as the appellate court noted, there has been ample
evidence to support the district court’s decision that the balance of hardships was tipped in
the plaintiffs’ favour. 107

96 Dictionary of Net Neutrality, ‘Peer to Peer’ <http://netneutrality.koumbit.org/en/node/7> accessed 9 April 2010. ‘What Is
a Client-Server Network? - Definition, Advantages & Disadvantages’ <https://study.com/academy/lesson/what-is-a-client-
server-network-definition-advantages-disadvantages.html> accessed 19 May 2019.
97 Study.com, ‘What Is a Client-Server Network? - Definition, Advantages & Disadvantages’, <https://study.com/academy/
lesson/what-is-a-client-server-network-definition-advantages-disadvantages.html> accessed 19 May 2019.
98 Omnisecu.com, ‘Peer-to-Peer networks and Client-Server networks’, <http://www.omnisecu.com/basic-networking/peer-to-
peer-and-client-server-networks.php> accessed 20 May 2019.
99 Ibid.
100 Ibid.
101 In re: Verizon Internet Services, Inc., Subpoena Enforcement Matter, 240 F. Supp. 2d 24, 38 (D.D.C.2003); RIAA v. Verizon,
351 F.3d 1229, 1238 (D.C. Cir. 2003).
102 Mark Lemley, ‘Rationalizing Internet Safe Harbors’ (2007) 6 Journal on Telecommunications and High Technology Law 101,
104.
103 A & M Records v. Napster, 239 F.3d 1004 (9 Cir. 2001).
th
104 The plaintiffs included a variety of major recording companies such as A&M Records, Geffen Records, Interscope Records,
Sony Music Entertainment and MCA Records.
105 A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 919 n. 24. (N.D. Cal. 2000).
th
106 A & M Records v. Napster, 239 F.3d 1004, 1025 (9 Cir. 2001).
107 Ibid 1013.

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