Page 88 - 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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alleged infringers settled their suits for amounts ranging between $3,000 and $11,000.
Rather than passively awaiting the loss of their customers, ISPs fought back, turning
down the copyright owners’ subpoenas that sought the identity of their subscribers. ISP
litigation, joined by several public interest groups such as the Electronic Frontier Foundation
(EFF), also received support from the courts. For example, when Verizon challenged RIAA’s
subpoena, Judge Ginsburg reversed the district court’s order enforcing the subpoenas,
clarifying that subpoenas should be issued only to ISPs engaging in storing infringing
material on its servers, which in general exempted P2P networks from disclosing their
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users’ information. Ginsburg’s reasoning was also adopted by the Eighth Circuit Court
that declined to enforce RIAA’s subpoena to Charter Communication. Concern over the
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copyright industry’s breach of privacy also went beyond the US. For example, the Federal
Court of Canada set several conditions that copyright owners should meet to compel an
ISP to divulge users’ information: (i) the copyright owner must establish a prima facie case
against the unknown alleged wrongdoer; (ii) the ISP being sought must be more than an
innocent bystander; (iii) the ISP must be only a practical information source; (iv) the ISP
must be reasonably compensated for the expense of complying with the discovery order; and
(v) the public interests favouring disclosure must outweigh legitimate privacy concerns. 192
Although most individuals receiving threatening letters chose to settle to avoid the
exorbitant costs of litigation, some accused file-sharers fought back by seeking dismissal of
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the copyright companies’ suits, recovering their attorney’s fees and countersuing for a
declaration of non-infringement and a finding of copyright misuse. University of Maine
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law students won a victory by not only stopping the subpoenas in the particular case but also
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forbidding the RIAA from launching future suits without good faith evidentiary support.
In addition to rethinking the copyright owners’ subpoena privilege in judicial practice, the
academic discourse also questioned whether the good intent of Congress in making the

189 EFF, ‘RIAA v. The People: Five Years Later’ (n 184).
190 RIAA v. Verizon Internet Services, 351 F.3d 1229, 1233 (DC Cir. 2003).
th
191 In re Charter Communication, 393 F.3d 771, 777 (8 Cir., 2005); But see the dissenting opinion delivered by Judge Murphy:
‘The statutory right to request a subpoena is not limited by the type of ISP. Any copyright owner or authorized agent “may
request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged
infringer”’.
192 BMG Canada Inc v John Doe, 2004 FC 488 (para. 3).
193 For example, Candy Chan moved to dismiss the record companies’ lawsuit against her on the ground that the RIAA had sued
the wrong person: her three-year-old son. EFF, ‘RIAA v. The People: Five Years Later’ (n 184).
194 For example, Patricia Santangelo, a single mother of five, moved to dismiss the lawsuit filed against her by several record
companies; Ibid.
195 For example, Rolando Amura challenged MediaSentry. Eric Bangeman, ‘Media Sentry Role in RIAA Lawsuit Comes Under
Scrutiny’ (Ars Technica, 3 February 2008) < https://arstechnica.com/tech-policy/2008/02/mediasentry-role-in-riaa-lawsuit-
comes-under-scrutiny/> accessed 24 May 2019.
196 Eric Bangeman, ‘Maine Law Students Try to Derail RIAA Lawsuit Express’ (Ars Technica, 3 April 2008) < https://
arstechnica.com/tech-policy/2008/04/maine-law-students-try-to-derail-riaa-lawsuit-express/> accessed 26 May 2019.

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