Page 79 - 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

Aimster is a Napster-like add-on to America Online’s Instant Messenger programme
that permits P2P file sharing. Unlike Napster, all files exchanged in Aimster are encrypted
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‘by the sender by means of encryption software furnished by Aimster’. The district court
agreed with the Napster decision issued by the Ninth Circuit Court, and declared that DMCA
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is not inapplicable to the P2P providers per se. The Seventh Circuit Court of Appeal
affirmed, asserting that ‘[a]lthough [the DMCA] was not passed with Napster-type services
in mind, the definition of Internet service provider is broad (“a provider of online services
or network access, or the operator of facilities therefor”, 17 U.S.C. § 512(k)(1)(B)), and …
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Aimster fits it’. However, the Seventh Circuit appellate court still held that Aimster could
not be sheltered by the DMCA safe harbour because Aimster did not satisfy the threshold
requirement of reasonably implementing and informing subscribers of the policy against
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repeat infringements. Although Aimster claimed it did not have knowledge of or control
over the infringing material because all files were encrypted, the court found that Aimster
had deliberately shielded itself from obtaining knowledge of the infringing material, and this
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constituted wilful blindness that could establish knowledge under copyright law.
Verizon is a telecommunications conglomerate that was brought to court by the
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Recording Industry Association of America (RIAA) for adopting P2P software. In this
case, the court rejected the safe harbour doctrine’s application to P2P, finding that when the
safe harbour rule was made, the Congress had no intention of covering new technologies
such as P2P file sharing; otherwise it would have construed the statutory exemption more
generally. This reasoning was closely followed in Charter. 115 Although the dissenting
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opinion in Charter disagreed that P2P technology called for a new rule, it acknowledged that
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P2P encouraged piracy. Accordingly, it suggested that P2P providers should help copyright
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owners combat copyright infringement to be exempt from liability. In another landmark
Supreme Court case, Grokster, the DMCA safe harbour doctrine was not even mentioned in
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the decision.
In Columbia Pictures v. Fung, the Ninth Circuit Court of Appeals rejected the application
of the safe harbour doctrine to isoHunt, an online torrent files index and repository operated

108 In re Aimster Copyright Litigation, 334 F.3d 643, 646 (7th Cir. 2003).
109 Ibid 655.
110 Ibid.
111 Ibid.
112 Ibid 650.
113 RIAA v. Verizon Internet Services, 351 F.3d 1229 (D.C. Cir. 2003).
114 Ibid 1239.
115 In re Charter Communications, 393 F.3d 771, 777 (8th Cir. 2005).
116 Ibid 779.
117 Ibid.
118 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

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