Page 93 - 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

adding watermark on the infringing user-generated-photograph, even though the platform did
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not change the content or form of the infringing user-generated material. In BWP Media v.
Polyvore, the Second Circuit Court rejected the district court’s grant of summary judgment
to Polyvore, arguing that Polyvore, a famous platform for remix, would lose its safe harbour
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defence if it made copies that were not requested by Polyvore users.
The trend of imposing more liability on UGC platforms has also manifested in other
jurisdictions. For instance, the Brazilian Superior Tribunal of Justice (‘STJ’) held Google
liable for copyright infringement caused by a YouTube video’s parody of a well-known
commercial. Although Google took down the video upon the copyright owner’s notice,
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the court found Google should adopt content identification technology to prevent any
unauthorised user-uploaded videos with the same content regardless of the title the user
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chooses. The German Supreme Court attached a monitoring obligation to a UGC platform
named RapidShare because RapidShare’s business model was based on facilitating third
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parties’ sharing of infringing content hosted by the platform. In Delta TV v. YouTube, a
case similar to Viacom v. YouTube in the US, the Tribunal of Turin ruled contrary to the
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US decision and rejected YouTube’s safe harbour defence. Finding that YouTube was
a new generation hosting provider, the Turin Court required YouTube to assume greater
responsibility for protecting copyright, including preventing re-uploading of content already
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identified as infringing. The Beijing High Court in China held Baidu Wenku, a major
Chinese UGC platform, to be liable for copyright infringement committed by its users on
the ground that the popularity of the infringed works triggered Baidu Wenku’s red flag
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knowledge.
The uncertainty of case law concerning the applicability of the safe harbour doctrine to
UGC platforms, as this thesis argues, is rooted in the UGC platforms’ active and volitional
role in the management and even promotion of content. UGC platforms have gone far
beyond ISPs’ passive and content-neutral role assumed by the legislators of the safe harbour
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rule.
th
229 853 F.3d 1020 (9 Cir. 2017).
nd
230 No. 16-2825-cv, at *10 (2 Cir. 2019).
231 Google Brazil v Dafra, Special Appeal No. 1306157/SP (Superior Court of Justice, Fourth Panel, 24 March 2014) <https://
cyberlaw.stanford.edu/page/wilmap-brazil>, cited in Giancarlo F. Frosio, ‘The Death of “No Monitoring Obligations”: A
Story of Untameable Monsters’ (2017) 8 Journal of Intellectual Property, Information Technology and E-Commerce Law
199, 204.
232 Ibid.
233 GEMA v. RapidShare I ZR 79/12 (Bundesgerichtshof, August 15, 2013) (Germany) cited in Frosio (n 230) 205.
234 Delta TV v. YouTube, N RG 15218/2014 <http://ipkitten.blogspot.com/2014/07/italian-court-says-that-youtubes.html>
accessed 24 May 2019.
235 Ibid.
236 Zhong Qin Wen v. Baidu, 2014 Gao Min Zhong Zi No. 2045 Civil Judgement .
237 S. Rept.105-190, at 41 (1998). The Congressional report makes it clear that to be a conduit, the transmission through the ISP
should be ‘carried out through an automatic technical process without selection of the material by the service provider’.

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