Page 80 - 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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by the defendant Gary Fung. The court found that isoHunt ‘modifies the torrent file by
adding additional backup trackers’ and the trackers ‘selec[t] the “points” to which a user's
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client will connect in order to download a file’. In a word, isoHunt served as more than
a ‘conduit’ under 17 U.S.C. § 512(a). Neither could isoHunt be protected under § 512(c)
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because it had red flag knowledge of the infringing activity, and even actively induced
infringement on the website. 122
Due to the courts’ hostility to DMCA safe harbour, ISP operators in the US have tended
123
to resort to the more traditional safe harbour doctrine derived from the Sony decision.
In the Sony decision the court found that if a device is capable of substantial non-
infringing uses, the device maker, namely, the distributor, would not be liable for copyright
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infringement committed by device users. The Sony decision has been deployed to protect
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a series of copying devices such as the MP3 players in Diamond. However, when digital
copying technology was combined with the Internet, the Sony principle was turned upside
down. 126
The Napster case rejected the Sony doctrine by (among other reasons), declining to
follow the ‘shifting’ analysis and introducing a knowledge requirement. Sony and Diamond
treated time-shifting or space-shifting copyrighted material as non-infringing use because
shifting did not involve the distribution of the copyrighted works to the general public. The
work is accessed at a different time or space but is still exposed to the original authorised
user. However, when a Napster user lists a copy of music he or she already owns on the
Napster system so that he or she can access the music from another location, it makes the
music ‘available to millions of other individuals’. The Ninth Circuit Court of Appeals
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also distinguished the Napster case from the Sony case by finding that Napster had ‘actual,
specific knowledge of direct infringement’ whereas Sony had no specific information that
would identify the infringing activity. Such knowledge precluded the application of the
128

119 Columbia Pictures v. Fung, 710 F.3d 1020 (9 Cir. 2013).
th
120 Ibid 1041.
121 Ibid 1043.
122 Ibid 1045.
123 Edward Lee, ‘The Ethics of Innovation: P2P Software Developers and Designing Substantial Noninfringing Uses Under
the Sony Doctrine’ (2005) 62 Journal of Business Ethics 147, 147; Brett M Frischmann, ‘Peer-to-Peer Technology
as Infrastructure: An Economic Argument for Retaining Sony's Safe Harbor for Technologies Capable of Substantial
Noninfringing Uses’ (2004) 52 Journal of the Copyright Society of the USA 329, 329.
124 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)
125 Recording Industry Association of American v. Diamond multimedia Systems, 180 F.3d 1072 (9th Cir. 1999); Maria Lilla
Montagnani, ‘A New Interface Between Copyright Law and Technology: How User-Generated Content Will Shape the
Future of Online Distribution’ (2008) 26 Cardozo Arts & Entertainment Law Journal 719, 725
126 Ibid.
127 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9 Cir. 2001).
th
128 Ibid 1020.

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