Page 86 - 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

infringing activities (KaZaA). Some courts have even introduced new requirements for
exemptions, such as the complements added to the Sony rule regarding dual-purpose service
(Aimster), and the intent element brought in to establish copyright inducement liability
(Grokster).
The controversies and uncertainties over the applicability of the safe harbour rule to P2P
service providers, as this thesis argues, are rooted in the overall incompatibility of the safe
harbour rule and P2P technology resulting from the different technical infrastructures of ISPs.
What the legislators of the safe harbour doctrine had in mind was ISPs with client-server
177
modes, representing a centralised technological infrastructure. Under this structure, ISPs
178
transmit, cache, host and locate information in a passive way at the direction of users.
The client-server ISP perfectly complies with the copyright owners’ privilege under the safe
179
harbour rule of sending take down notices. Once the infringing material has been removed
from the server pursuant to the copyright owners’ notice, the infringing material does not
spread widely. However, ISPs providing P2P service enable and assist users to find resources
from other users and download. Because the information is stored in each users’ computer
rather than the server of the P2P network, deleting the infringing material from one computer
would not influence the material in another computer. This has made it difficult to combat
180
copyright infringement. In other words, both conditions underpinning the safe harbour
doctrine illustrated in Section 3.2.1 have failed in the context of P2P: (i) P2P providers
actively assist in the location and transfer of infringing content; and (ii) the copyright
owners’ takedown notice is insufficient to curtail the endless infringements initiated by
decentralised users.
The inadaptability of the safe harbour doctrine to the P2P technology has been concerned
with the basis of the intermediary-exempt rule rather than the technical details of how P2P
providers work. That is why the cases that support the extension of the safe harbour rule
to P2P providers have been based more on the negative consequence of prohibiting new
technology than on the standard of the qualified categories or specific elements under safe
harbour. For example, the CJEU reversed the injunction against SABAM and explicitly
stated that such requirement failed to strike a fair balance ‘between the right to intellectual
property, on the one hand, and the freedom to conduct business, the right to protection of
181
personal data and the freedom to receive or impart information, on the other’.

177 Elkin-Koren, ‘Making Technology Visible’ (n 32) 39.
178 Ibid 21; Mathias Strasser, ‘Beyond Napster: How the Law Might Respond to a Changing Internet Architecture’ (2001) 28
Northern Kentucky Law Review 660, 694.
179 ‘A service provider will not be found to have “the right and ability to control” infringing activity simply because it has the
general ability to remove infringing material and terminate the accounts of repeat infringers’.See UMG Recordings v. Veoh,
718 F.3d 1006, 1030 (9th Cir. 2013); Greg Young Publishing, Inc. v. Zazzle, Inc., 2017 WL 2729584 (C.D. Cal. 2016).
180 Elkin-Koren, ‘Making Technology Visible’ (n 32) 40.
181 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) (C-70/10) [2011] ECR I-11959,
para 53.

• 72 •