Page 81 - 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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Sony rule and required Napster to block infringing material to become exempt. The court
followed the Religious Technology Center v. Netcom OnLine Communication Services
case, which suggested that actual knowledge of specific online infringement could ‘hold a
computer system operator liable for contributory copyright infringement’. 130
In In re Aimster, the appellant claimed that it should be exempt from contributory
liability because, according to Sony, ‘mere constructive knowledge of infringing use is
131
not enough for contributory infringement’. This argument was rejected on the ground
that Amister deliberately prevented itself from knowing about the infringing activities
by choosing an encryption system. Judge Posner called this ‘wilful blindness’ that
132
133
constituted knowledge within the meaning of the DMCA. The Aimster decision became
134
a sophisticated complement to the Sony doctrine, holding that if ‘a product or service
used solely to facilitate copyright infringement’, it would be undesirable to immunise the
manufacturer or seller of the product or service from liability for contributory infringement
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even though the product or service ‘was capable in principle of non-infringing uses’.
Judge Posner, known as a pioneer in the law and economics, introduced a new doctrine with
cost-benefit analysis to deal with a device that is capable of non-infringing uses but has
substantial infringing uses. He said that to avoid contributory infringing liability, the ISP
136
‘must show that it would have been disproportionately costly for him to eliminate or at least
reduce substantially the infringing uses’. 137
The Sony doctrine appeared to meet further challenges in Grokster in which the Supreme
Court found that the one who distributes a device with the intent to promote infringing uses
is liable for the resulting infringing acts of third parties using the device, ‘regardless of the
138
device’s lawful uses’. In other words, the Supreme Court held that inducement liability

129 Ibid.
130 Ibid 1021.
131 In re Aimster Copyright Litigation, 334 F.3d 643, 649 (7 Cir. 2003).
th
132 Ibid.
133 Ibid 650.
134 Many commentators have criticised Posner for modifying the Sony decision; Giuseppe Mazziotti, EU Digital Copyright
Law and the End-User (Springer 2008); William W Fisher III, Promises to Keep: Technology, Law, and the Future of
Entertainment (Stanford University Press 2004) 114. However, this thesis finds no modification, just a complement to the
Sony decision because Sony and Aimster addressed different situations. The Sony case addressed a device that was used for
infringing purposes but was able to conduct ‘substantial non-infringing use’. Aimster dealt with a device that was capable of
non-infringing use but was designed solely to facilitate an infringing use.
135 In re Aimster Copyright Litigation, 334 F.3d 643, 651 (7th Cir. 2003).
136 Ibid 653.
137 Ibid.
138 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 917 (2005).

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