Page 92 - 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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‘buried’ user-generated videos hosted on the platform. The Second Circuit Court of
Appeals, issuing the Vimeo decision, found that to establish the UGC platform’s red flag
knowledge of the infringing content, the plaintiff would have been required to demonstrate
that the platform’s employees viewed each video-in-suit rather than a general category
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of videos containing infringing content. This decision has given rise to fierce criticism
because of its unreasonably high threshold for red flag knowledge.
222
In BWP Media v. Clarity, the Tenth Circuit Court of Appeals treated those who viewed
UGC hosted on the platform as independent contractors rather than employees of the
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platform. This observation was merely based on the plain language of the contract between
the viewers and the platform, regardless of the authority these viewers had received from the
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platform. The more recent case of Mavrix Photographs v. LiveJournal, correctly reversed
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the trend. Based on the ‘explicit and varying levels of authority’ given by the platform
to the moderators who reviewed the user-generated-photographs, the Ninth Circuit Court
of Appeals held that the moderators were the same as employees acting on behalf of the
platform even though the platform called the moderators ‘volunteers’. 226
UGC platforms often make copies or even transform UGCs, which might influence their
qualification for the safe harbour doctrine. For example, once a video is uploaded, YouTube
will make copies of the video in both its original file format and a standard display format to
enhance the video’s availability to the most users. In Viacom v. YouTube, the Second Circuit
Court of Appeals found that making copies of user-uploaded-videos and transforming their
forms did not disqualify YouTube from safe harbour protection because such conduct was
solely for the purpose of facilitating users’ access to the videos. The Viacom opinion
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was closely followed by UMG Recordings v. Shelter, in which the Ninth Circuit refused to
deprive Veoh of safe harbour protection even though it had made copies of and converted the
form of user-generated-material.
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Nevertheless, courts have recently appeared to develop a more stringent condition for the
safe harbour. In Mavrix Photographs v. Livejournal, the Ninth Circuit suggested that a UGC
platform would establish its knowledge of infringement and lose safe harbor protection by

220 826 F.3d 78, 96 (2d Cir. 2016).
221 Ibid 97.
222 Devlin Hartline, ‘Capitol Records v. Vimeo: Courts Should Stop Coddling Bad Actors in Copyright Cases’ (IPWatchDog,
22 June 2016) < https://www.ipwatchdog.com/2016/06/22/capitol-records-vimeo-copyright/id=70288/> accessed 19 May
2019; Loeb & Loeb LLP, ‘Capitol Records LLC v. Vimeo LLC’, (16 June 2016) <https://www.loeb.com/en/insights/
publications/2016/06/capitol-records-llc-v-vimeo-llc> accessed 19 May 2019.
th
223 820 F.3d 1175, 1178 (10 Cir. 2016).
224 Ibid 1780.
th
225 853 F.3d 1020 (9 Cir. 2017).
226 Ibid 1029.
nd
227 676 F.3d 19, 28 (2 Cir. 2012).
th
228 718 F.3d 1006, 1012 (9 Cir. 2013).

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