Page 84 - 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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v UPC Communications Ltd decided by the High Court of Ireland, and Financial
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Intelligence Unit v Cyber Space Ltd decided by the Court of Appeal (England and Wales).
Both decisions declined to impose liability on the ISP because the copyright owner had
failed to establish the authorisation element. However, in another P2P case, Twentieth
v. British Telecommunication, the High Court of Justice in England (EWHC) issued an
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injunction against the defendant, which was the largest ISP in England. Finding that the
‘requirement for actual knowledge should not be interpreted too restrictively’, the EWHC
concluded that the defendant had actual knowledge of the infringing activities occurring in
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its network, although not of the specific activity. This signified a departure from the ‘specific
knowledge’ requirement under the DMCA.
In Scarlet v. Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) the
Court of Justice of the European Union (CJEU) took a more sophisticated approach.
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On the one hand, it confirmed that SABAM should be liable for the infringing activities
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occurring in its network. On the other hand, it did not support the requirement imposed
by the President of the Tribunal de première instance, Brussel, that SABAM should install
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a system for filtering electronic communications that use P2P software. As the CJEU
explained, installing the contested filtering system would impose an obligation on the ISP
to actively monitor all activities conducted by all users, which violates Article 15(1) of
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Directive 2000/31 prohibiting ISPs from carrying out general monitoring.
3.3.2 Incompatibility of the decentralised P2P and the disintermediate safe
harbour Doctrine

It seems that the primary reason to reject the application of the safe harbour doctrine,
either under Internet copyright law or the Sony rule, has been the P2P service providers’
knowledge of infringing activities. Therefore, P2P providers have decentralised to avoid
gaining knowledge of the infringing activities by their peers.
The first generation of P2P providers, characterised by Napster, that developed in the late
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1990s, provided service within a ‘centralised’ network. The centralised P2P network relied
on a centralised server to index the files available for download to help users locate the files:

156 EMI Records v UPC Communications Ltd 2010 IEHC 377.
157 Financial Intelligence Unit v Cyber Space Ltd., [2014] 1 LRC 177 at 184.
158 Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 1981 (Ch), [2012] 1 All ER 806, at 809.
159 Ibid at 808.
160 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) (C-70/10) [2011] ECR I-11959.
161 Ibid para 30.
162 Ibid para 35.
163 Ibid, para 40.
164 Steve Vondran, ‘The Pirate Bay Torrent Defense Law Firm’ (Vondran Legal, 30 January 2019) <https://vondranlegal.com/
the-pirate-bay-legal-cases-in-the-news/> accessed 20 May 2019.

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