Page 85 - 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

the user sent the query to the indexing server, and then the server told the user which peers
165
had the content available for download. Upon sending the query, the user also informed the
166
indexing server what files s/he had available for others to download. The key difference
between the centralised P2P system and the client-server mode is that the central server in
the P2P system locates the information but does not store or transfer it. Simply put, searching
is centralised, but file transfers are peer-to-peer.
167
The second generation of P2P providers have worked within a hybrid network without
168
a central server. In the hybrid P2P system, each peer is called a ‘node’ and each node
is assigned to one ‘supernode’. The ‘supernodes’ are similar to the index servers in the
169
centralised P2P system in that they do not store or transfer files. A search query sent by a
170
node would go to the supernode that would forward the query to other supernodes and then
tell the requested node what nodes have the expected content. A typical example of the
171
172
hybrid P2P protocol is FastTrack, on which Grokster’s software application was based.
BitTorrent is another example of a hybrid P2P protocol, which has been more efficient at
transmitting files by breaking them into smaller pieces, so users can download different
pieces from different peers simultaneously. 173
The third generation of P2P providers has developed a ‘pure’ P2P network that allows
174
users to directly search the files of other users without a centralised server or ‘supernodes’.
Under the pure P2P networks, users’ queries are sent to several neighbour peers who
175
continue to pass on the queries while responding to the requesting user’s question. The
most popular pure P2P protocol has been Gnutella, which has been used by StreamCast to
power its software application, Morpheus. 176
P2P service providers have continually updated their technological infrastructure to
meet the demanding safe harbour threshold, and the legal standard has also evolved with
the technological advances. Some courts have elevated the threshold for exemption, by for
example, restricting the applicability of the Sony safe harbour to the knowledge of infringing
activities (Napster), or establishing ‘authorisation’ merely through a general ability to control

165 Ibid.
166 Ibid.
167 RIAA v. Verizon, 351 F.3d 1229, 1232 (D.C. Cir. 2003).
168 Vondran (n 164).
169 Ibid.
170 Ibid.
171 Ibid.
172 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 921 (2005).
173 Ibid.
174 RIAA v. Verizon, 351 F.3d 1229, 1232 (D.C. Cir. 2003).
175 Vondran (n 164).
176 RIAA v. Verizon, 351 F.3d 1229, 1232 (D.C. Cir. 2003).

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