Page 89 - 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

subpoena provision would come to full fruition. 197
The copyright owners’ strategy of targeting file-sharers did not seem to successfully
drive P2P out of the digital music market. Despite the flood of threatening letters and more
than 30,000 RIAA lawsuits against millions of individuals, P2P networks and other new
198
sharing music technologies have snowballed across the world. According to a study from
the NPD Group, a marketing research firm, P2P networks hosted 15 million download
requests in 2006, with an increase of 50% in the total amount of P2P file sharing compared
199
to 2005. The number of files downloaded from and shared through P2P systems kept
200
growing throughout 2007. A more serious problem of directly targeting users has related
to the relationship with the public. As the EFF pointed out, the copyright industry is actually
‘kicking off an unprecedented legal campaign against the people that should be the recording
industry’s best customers: music fans’. In 2008, the RIAA announced that it would stop
201
202
suing individuals for pirating music in the P2P networks.
2) Cooperating with ISPs
Due to their failure to shut down the new P2P technology, either by suing the distributors
or the end users, copyright owners began to cooperate with the new technology, as they
had done over the past three centuries. A remarkable outcome of the cooperation strategy
was the ‘graduated response’ system, also known as the ‘three strikes approach’ or ‘six
strikes approach’. Under the graduated response system, ISPs must send notices to
203
alleged infringers and gradually implement enhanced technical measures such as bandwidth
reduction, protocol blocking and in the worst case scenario, temporary access suspension and
account termination against the infringers who have received notice three/six times.
204
As a pioneer of the system, in 2009 France codified the three strikes approach into
205
copyright law, in the so-called Hadopi bill. Later on, this policy was endorsed by a
range of jurisdictions, such as Taiwan (2009), South Korea (2009), the UK (2010) and

197 Alice Kao, ‘RIAA v. Verizon: Applying the Subpoena Provision of the DMCA’ (2004) 19 Berkeley Technology Law Journal
405; David Gorski, ‘The Future of the Digital Millennium Copyright Act (DMCA) Subpoena Power on the Internet in Light
of the Verizon Cases’ (2005) 24 The Review of Litigation 149, 150; Lemi Baruh, ‘Read at Your Own Risk: Shrinkage of
Privacy and Interactive Media’ (2007) 9 New Media Society 187, 188.
198 EFF, ‘RIAA v. The People: Five Years Later’ (n 184).
199 Ibid.
200 Ibid.
201 Ibid.
202 Nate Anderson, ‘No More Lawsuits: ISPs to Work with RIAA, Cut Off P2P Users’ (Ars Technica, 19 December 2008)
<https://arstechnica.com/tech-policy/2008/12/no-more-lawsuits-isps-to-work-with-riaa-cut-off-p2p-users/> accessed 19 May
2019.
203 Annemarie Bridy, ‘Graduated Response American Style: 'Six Strikes' Measured Against Five Norms’ (2012) 23 Fordham
Intellectual Property Media & Entertainment Law Journal 1, 27.
204 Ibid 28.
205 Trisha Meyer, ‘Graduated Response In France: The Clash of Copyright and the Internet’ (2012) 2 Journal of Information
Policy 107, 114-115.

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