Page 91 - 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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they have offered to copyright owners rather than users. Due to the lack of effective
regulation of distributors (P2P service providers), the end users have lost their freedom to
access and use copyrighted works. The absence of intermediary liability has resulted in even
greater loss in the UGC age where every user is empowered with the ability to participate in
cultural production.

3.4 Uncertainty of UGC Platforms’ Liability

3.4.1 Inapplicability of the safe harbour doctrine to UGC platforms

At first it appeared that UGC platforms would more likely be sheltered by the safe
harbour doctrine than P2P providers because 17 U.S.C. § 512 (c) has a broad exemption for
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online intermediaries that have stored infringing information at the direction of users. For
example, as Tim Wu noted, even though YouTube hosts the infringing material and Napster
does not, it is YouTube, not Napster that is eligible to enter the safe harbour. Napster has
more actively engaged in users’ infringement activity by providing tools that identify the
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users’ location and facilitate the downloading of infringing content. Nevertheless, the
inconsistency of case law suggests that the courts have been hesitant to place UGC platforms
into the safe harbour.
In CoStar Group vs. LoopNet, an early case regarding UGC copyright, the employees
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of LoopNet reviewed user-generated-photographs and blocked those that infringed. The
majority opinion held that this conduct ‘takes only seconds’ and thus is too insignificant
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to amount to copying. Therefore, the majority concluded that LoopNet still acted as a
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conduit for infringing content and did not lose the protection of the safe harbour doctrine.
However, Judge Gregory dissented, saying that LoopNet’s non-passive, volitional review
rendered it a copier rather than a conduit, and that LoopNet was not eligible for safe harbour
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protection.
In Capitol Records v. Vimeo, the court also upheld a UGC platform’s safe harbour
privilege even though the employees of the platform viewed, commented on, ‘liked’ and

213 Joseph P Liu, ‘Fair Use, Notice Failure, and the Limits of Copyright as Property’ (2016) 96 Boston University Law Review
101, 101; Cobia (n 90) 388.
214 UMG v. Veoh 620 F. Supp. 2d 1081, 1088 CV 07-5744 AHM (AJWx) 2008 U.S. Dist. LEXIS 104980; Arista v. Myxer 2011
U.S. Dist. LEXIS 109668, at 53. (‘[the defendant] correctly observes that the language of § 512(c) is “broad”’); Viacom v.
YouTube 718 F. Supp. 2d 514, 527 07 Civ. 2103 (LLS),07 Civ. 3582 (LLS).
215 Tim Wu, ‘Does YouTube Really Have Legal Problems? How the Bell Lobby Helped Midwife YouTube’ (State, 26 October
2006) <https://slate.com/news-and-politics/2006/10/how-the-bell-lobby-helped-midwife-youtube.html> accessed 23
December 2018.
216 373 F.3d 544, 556 (4th Cir. 2004).
217 Ibid.
218 Ibid 551.
219 Ibid. 560.

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