Abstract
Today, ISPs (Internet Service Providers) which host information directed at their subscribers, are commonly conducting business in an international market, some of them even successfully make their services part of netizens’ daily life, such as YouTube, Facebook, and Twitter. In order to achieve commercial success on the international stage, it is necessary for hosting ISPs to know what legal risks they face, in other words their freedom to operate.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
ISP is the abbreviation of Internet service provider. According to the definition in the Digital Millennium Copyright Act (thereafter DMCA), an Internet service provider “means a provider of online services or network access, or the operator of facilities therefor.” See DMCA Sec. 512 (k)(B). In the light of the definition in E-commerce Directive, an Internet service provider means “ any natural or legal person providing an information society service”. See Council E-commerce Directive of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [2000] OJ L 178/1 (thereafter E-commerce Directive), Art. 2. Regarding “information society service,” it means any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. See Council Directive 98/48/EC of 20 July 1998 on amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations, Art. 1(2). Therefore, ISP is a broad concept which covers a wide range of natural and legal persons who provide services on the Internet at the request of the recipients of their services.
- 2.
For example, Viacom claimed that more than 150,000 clips of its copyrighted materials were available on YouTube without authorization, and these clips had been viewed “an astounding 1.5 billion times,” so it demanded 1 billion US dollars in damages. See YouTube law fight ‘threatens net’, BBC (2008), available at http://news.bbc.co.uk/2/hi/technology/7420955.stm. See also Viacom International, INC. v. YouTube, INC., 718 F. Supp. 2d 514 (S.D.N.Y. 2010), Viacom International, INC. v. YouTube, INC., 676 F.3d 19 (2nd Cir. 2012).
- 3.
Lemley and Reese (2004).
- 4.
Religious Technology Center v. Netcom On-line Communications Services, 907 F. Supp. 1361 (N.D. Cal. 1995).
- 5.
Io Group, Inc v. Veoh Networks, Inc., 586 Supp.2d 1132 (C.D.Cal. 2008).
- 6.
Perfect 10, Inc. v. RapidShare, No. 09-CV-2596 H (S.D. Cal., 2010).
- 7.
Viacom International, INC. v. YouTube, INC., 676 F.3d 19 (2nd Cir. 2012).
- 8.
Playboy Enterprises Inc. v. Frena, 839 F.Supp. 1552 (M.D. Fla. 1993). BBS is the abbreviation for a bulletin board system. It is a computer server running custom software that allows users to connect to the system using a terminal program. Once logged in, the user can perform functions such as uploading and downloading software and data, reading news and bulletins, and exchanging messages with other users through email, public message boards, and sometimes via direct chatting. See Bulletin board system, Wikipedia, available at https://en.wikipedia.org/wiki/Bulletin_board_system (last visited 09-02-2014).
- 9.
- 10.
Wang et al. (2009).
- 11.
See DMCA (n1), Sec. 512; E-commerce Directive (n1), Section 4; Internet Regulation (信息条例) (n1), Art. 14-17, Art. 20-25.
- 12.
- 13.
E-commerce Directive (n1), Recital 2.
- 14.
See IP/97/313, Electronic Commerce: Commission Presents Framework for Future Action, 16 April 1997. IP/98/999, Electronic Commerce: Commission Proposes Legal Framework, 18 November 1998.
- 15.
Nielson et al. (2007).
- 16.
Congress, U. S., House Report 105-551 (1998), Part II (thereafter H.R. REP. 105-551(II)), at 21.
- 17.
Ibid.
- 18.
Ibid.
- 19.
Ibid, at 22.
- 20.
Zhang (2006).
- 21.
Lemley (2007).
- 22.
Statistics, YouTube (2015), available at http://www.youtube.com/yt/press/statistics.html (last visited 21-09-2015).
- 23.
As noted by the European Court of Human Right, “In the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the sharing and dissemination of information generally.” See Application nos. 3002/03 and 23676/03 Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom [2009] EMLR 14, ECHR.
- 24.
Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, United Nations General Assembly, A/66/290, 10 August 2011, at 12.
- 25.
Bretan (2003).
- 26.
See generally Lemley and Reese, ‘Reducing digital copyright infringement without restricting innovation’ (n3), at 1386–1390. In this article, the authors demonstrate that if holding facilitators liable for the copyright infringement committed by their users, facilitators would not develop or apply new technologies to improve their services or products, which would obviously restrict the technological innovation.
- 27.
In the early 1980s, Sony started to sell video tape recorders which could be used to record television programs, and finally, the US Supreme Court held that since the video tape recorders sold by Sony were capable of substantial non-infringing uses, the company was not liable for selling a product that might be used for infringing purposes. See Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984). In the UK, Amstrad Consumer Electronics sold blank tapes with twin cassette decks which enabled the high speed copying of a recording from one tape to another, and eventually, the House of Lords rejected Amstrad’s copyright liability, because the blank tapes enabled the recording and copying of copyrighted materials, but such recording and copying might or might not be unlawful. C.B.S. Songs Ltd and ors v. Amstrad Consumer Electronics Plc [1988] 1 A.C. 1013. If the defendants in these two cases were held liable for copyright infringement, the technologies concerned would be banned.
- 28.
Ginsburg (2001).
- 29.
Lemley and Reese, ‘Reducing digital copyright infringement without restricting innovation’ (n3), at 1387.
- 30.
Ibid.
- 31.
Liu (2005).
- 32.
For instance, since 2006, YouTube has signed a series of agreements with several copyright giants, including Warner Music Group, CBS Corporation, Universal Music Group and Sony BMG. According to these agreements, copyright owners can share the advertising revenue collected not only from videos in their brand channels, but also from the user-generated videos that incorporate the audio and audiovisual works copyrighted by them on YouTube. See Warner Music Group and YouTube Announce Landmark Video Distribution and Revenue Partnership, Warner Music Group (2006), available at http://investors.wmg.com/phoenix.zhtml?c=182480&p=irol-newsArticle&ID=906153 (last visited 09-02-2013); CBS and Youtube Strike Strategic Content And Advertising Partnership, CBS Corporation (2006), available at http://www.cbscorporation.com/news-article.php?id=23 (last visited 09-02-2013); Universal Music Group and YouTube Forge Strategic Partnership, Universal Music Group (2006), available at http://www.universalmusic.com/corporate/detail/393 (lasted visited 13-09-2013); Sony BMG Music Entertainment Sighs Content License Agreement with YouTube, Sony Music (2006), available at http://www.sonymusic.com/sonymusic/sony-bmg-music-entertainment-signs-content-license-agreement-with-youtube/ (lasted visited 13-09-2013). In the EU, Dailymotion have also signed similar agreements with wide range of copyright owners, and in the light of these agreements, copyright owners can get as much as 70% of all advertising revenue created by their contents. See http://official.dailymotion.com/en/ (lasted visited 15-09-2013). In China, Youku has signed corporation agreements with Sony Pictures Entertainment, Warner Brother, Dreamworks, Paramount, 21st Century Fox, Disney, and other copyright owners. See YoukuTudou signed a 5-year copyright licensing contract with Sony Picture (优酷土豆与索尼音像签订五年版权协议), it.sohu.com (2012), available at http://it.sohu.com/20121106/n356832451.shtml (lasted visited 18-09-2013).
- 33.
IP/98/999 ‘Electronic Commerce: Commission Proposes Legal Framework’ (n14).
- 34.
H.R. REP. 105-551(II) (n16),, at 21.
- 35.
Legislative Affair Office Answered Reporters’ Questions on “Regulation on the Protection of the Right to Internet Dissemination of Information” (法制办就《信息网络传播权保护条例》答记者问), xinhuanet.com (新华网) (2006), available at http://news.xinhuanet.com/politics/2006-05/29/content_4615669.htm.
- 36.
For instance, hosting ISPs need to comply with several requirement so as to be exempted from monetary liability. Further, hosting ISPs also need to fulfill certain obligations in notice-and-takedown procedures and identity disclosure mechanisms according to “safe harbor” provisions. See generally DMCA § 512, Internet Regulation, E-commerce Directive Section 4. These duties will be discussed in detail in the following chapters.
- 37.
See DMCA (n1), Sec. 512, (c)(1); E-commerce Directive (n1), Art. 14; Internet Regulation (网络条例) (n1), Art. 22.
- 38.
- 39.
In the US and China, the notice-and-takedown procedure has been adopted into the “safe harbor” provisions, see DMCA (n1) 512 (c), (f), (g), and Internet Regulation (信息条例) (n1), Art. 14-17. In the EU, although E-commerce Directive has not adopted notice-and-takedown procedure, in the member states the statutory or self-regulatory notice-and-takedown procedures have been widely adopted. See Commission Staff Working Paper: Online Services, Including E-commerce, in the Single Market, SEC (2011) 1641 final, 11 January 2012, at 39–46.
- 40.
In order to protest against the misuse of takedown notices, a website called “Chilling Effects Clearinghouse” has been set up to allow the public to report the notices they receive. See https://www.chillingeffects.org/index.cgi, (last visited 22-08-2014). In the light of research done on the 876 notices reported to Chilling Effects, Urban and Quilter noted that nearly 30% of takedown notices sent to Google were based on flawed or highly questionable copyright claims. See Urban and Quilter (2005). Another research done by the Brennan Center for Justice at New York University revealed that, among 245 takedown notices reported to Chilling effects in 2004, 63% of the notices “either targeted material with a fair use/First Amendment defense or stated a weak IP claim.” See Heins and Beckles (2005).
- 41.
In the US, DMCA 512 (h) grants copyright owners the rights to apply subpoenas for the purpose of disclosing Internet users’ identities. In China, according to Article 13 of Internet Regulations, the administrative department of copyrights may, with the purpose of investigating the infringements upon the right to network dissemination of information, require the relevant Internet service provider to provide such materials as the names, contact information, and the web address of its service objects who are suspected of committing copyright infringement. Further, in terms of Internet Interpretation (2006), copyright owners also can request the registration information of Internet users from hosting ISPs for the purpose of suing the Internet users for copyright infringement. In the EU, there are several directives indicating that Internet users’ data can be disclosed for the purpose of protecting copyright, see Article 13 of General Data Protection Directive (Directive 95/46/EC), Article 15 of E-privacy Directive (Directive 2002/58/EC), Article 15(2) of E-commerce Directive and Article 8 of IP Enforcement Directive (Directive 2004/48/EC).
- 42.
- 43.
Williams (2005).
- 44.
Case law in some jurisdictions requires hosting ISPs to adopt reasonable filtering technologies, see BGH 15 August 2013, No. I ZR 80/12, Han Han v. Baidu (韩寒诉百度), Beijing Haidian District Court, No. 5558 Hai Min Chu Zi (2012) (2012海民初字第5558号). Further, in light of self-regulation agreements, hosting ISPs also need to adopt filtering technologies, see Principles for User Generated Content Services (2007), available at http://www.ugcprinciples.com/ (last visited 12-06-2015); self-discipline treaty on Internet audio-video program services in China (中国互联网视听节目服务自律公约), State Administration of Radio Film and Television (国家广电总局) (2008), available at http://www.sarft.gov.cn/articles/2008/02/22/20080226114116260491.html (last visited 16-06-2015). YouTube also establishes its own filtering system named “Content ID”, see How Content ID works, available at https://support.google.com/youtube/answer/2797370?hl=en (last visited 18-06-2015).
- 45.
Sawyer (2009). In this article, Sawyer asserts that given that fair use is such a major challenge for the courts to evaluate, it is almost impossible for any technological solution to reach accurate determinations. See also Fair Use Principles for User Generated Video Content, Electronic Frontier Foundation (2007), available at https://www.eff.org/pages/fair-use-principles-user-generated-video-content (last visited 28-07-2014). In this report, Electronic Frontier Foundation (EFF) also claims that filtering technologies can hardly accommodate fair use.
- 46.
Regarding what are contributory infringement and vicarious liability, see Sec. 2.1.1.
- 47.
As presented in Chap. 2, the UK has developed authorization infringement and joint tortfeasance, but the civil law countries, such as Germany, France and Italy, the courts usually decide the indirect copyright infringement cases by referring to the general liability rules, particularly the duty of care notion, in tort law.
- 48.
As noted by Daniel Seng, “safe harbor” provisions have indeed become a global standard to limit ISPs’ liability for indirect copyright infringement, but interpretational problems still exist. See Seng D, Comparative Analysis of National Approaches of the Liability of the Internet Intermediaries (Preliminary Version), para. 6, available at http://www.wipo.int/export/sites/www/copyright/en/doc/liability_of_internet_intermediaries.pdf (last visited 04-03-2016).
- 49.
DMCA (n1), Sec. 512, (m) (1); E-commerce Directive (n1), Art. 15.
- 50.
DMCA (n1), Sec. 512 (c) (1) (A); E-commerce Directive (n1), Art. 14, 1; Internet Regulation (网络条例) (n1), Art. 22 (3).
- 51.
DMCA (n1), Sec. 512 (h); E-commerce Directive (n1), Art. 15; Internet Regulation (网络条例) (n1), Art. 15-17, Art. 24.
- 52.
DMCA (n1), Sec. 512 c (3) and g; E-commerce Directive (n1), Recital 40.
- 53.
DMCA (n1), Sec. 512 (i).
- 54.
See Sect. 4.7.
- 55.
Ibid.
- 56.
See Sect. 5.4.
- 57.
Hugenholtz (2010).
- 58.
Baraliuc et al. (2013).
- 59.
“Safe harbor” provisions not only include the rules on deciding whether hosting ISPs are monetarily liable for the infringement committed by their users, but also prescribe notice-and-takedown procedures and the disclosure of personal identity. See generally DMCA § 512, Internet Regulation, E-commerce Directive Section 4. Although E-commerce Directive does not include the detailed rules about notice-and-takedown procedures, because in light of Article 14, hosting ISPs need to immediately remove infringing materials upon knowing them, a de facto notice-and-takedown procedure has been widely recognized in the EU. Further, the Recital 14 of E-commerce Directive also refers to the Directives on privacy protection, and these Directives allow Internet users’ identities to be disclosed for the purpose of copyright protection. The detailed discussion will be done in Chap. 2.
- 60.
The notice-and-takedown procedures in the EU turn out to be very fragmented. Some member states have adopted statutory notice-and-takedown procedures, including Finland, Hungary and Lithuania. Some other member states, such as France, Italy and UK, rule on the elements of a competent notice in their national legislations about implementing E-commerce Directive. There also exist member states which have not ruled on the elements of a competent notice at legislative level, including Holland and Germany. See Sec. 5.2 of this thesis.
- 61.
Hugenholtz, ‘Codes of Conduct and Copyright Enforcement in Cyberspace’ (n57), at 303.
References
Baraliuc I, Depreeuw S, Gutwirth S (2013) Copyright enforcement in the digital age: a post-ACTA view on the balancing of fundamental rights. Int J Law Inf Technol 21:92, at 92–104
Bretan J (2003) Harboring doubts about the efficacy of 512 Immunity under the DMCA. Berkeley Technol Law J 18:43, at 43
Carmichael J (1995) In support of the white paper: why online service providers should not receive immunity from traditional notions of vicarious and contributory liability for copyright infringement. Loyola Los Angeles Entertain Law Rev 16:759
Cohen JE (2002) Overcoming property: does copyright trump privacy?. J Law Technol Policy 2002:375, at 375
Edwards L (2009) Should ISPs be compelled to become copyright cops? File-sharing, the music industry and enforcement online. J Soc Comput Law 19:29
Ginsburg JC (1995) Putting cars on the “information superhighway”: authors, exploiters, and copyright in cyberspace. Columbia Law Rev 95:1466
Ginsburg JC (2001) Copyright and control over new technologies of dissemination. Columbia Law Rev 1613–1614
Heins M, Beckles T (2005) Will fair use survive? Free expression in the age of copyright control. Brennan Center For Justice, at 35
Hugenholtz PB (2010) Codes of conduct and copyright enforcement in cyberspace. In: Stamatoudi IA (ed) Copyright enforcement and the internet. Kluwer Law International, at 303
Katyal S (2004) Privacy vs. piracy. Yale J Law Technol 7:222, at 335–345
Lemley MA (2007) Rationalizing internet safe harbors. J Telecommun High Technol Law 6:101, at 101
Lemley MA, Reese RA (2004) Reducing digital copyright infringement without restricting innovation. Stanford Law Rev 56:1345, at 1349
Lichtman D, Landes W (2003) Indirect liability for copyright infringement: an economic perspective. Harvard J Law Technol 16:395
Liu JR (2005) Why is Betamax an Anachronism in the digital age? Erosion of the Sony Doctrine and indirect copyright liability of internet technologies. Vanderbilt J Entertain Technol 7:243, at 353
Nielson CK, Jervelund C, Pedersen KG, Rytz B, Hansen ES, Ramskov JL (2007 )Study on the economic impact of the electronic commerce directive. European Commission, DG InternalMarket and Services Unit E2, at 17
Rantou MI (2012) The growing tension between copyright and personal data protection on an online environment: the position of Internet Service Providers according to the European Court of Justice. Eur J Law Technol 3:2
Sawyer MS (2009) Filters, fair use & feedback: user-generated content principles and the DMCA. Berkeley Technol Law J 24:363, at 366
Seltzer W (2010) Free speech unmoored in copyright’s safe harbor: chilling effects of the DMCA on the first amendment. Harvard J Law Technol 24:171
Urban JM, Quilter L (2005) Efficient process or chilling effects-takedown notices under Section 512 of the Digital Millennium Copyright Act. Santa Clara High Technol Law J 22:621, at 667
Wang HC (王宏丞), Cao LP (曹丽萍), Li DT (李东涛) (2009) Study on the key points in the cases of infringement on video-sharing websites (论视频分享网站侵权案件中的焦点问题). Electron Intellect Property (电子知识产权) 4:11, at 12
Williams KS (2005) On-Line anonymity, deindividuation and freedom of expression and privacy. Penn State Law Rev 110:687, at 687
Zhang JH (张建华) (2006) The interpretation of regulation on the protection of the right to internet dissemination of information (信息网络传播权保护条例释义). China Legal Publishing House (中国法制出版社), at 85
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2018 Springer Nature Singapore Pte Ltd.
About this chapter
Cite this chapter
Wang, J. (2018). Introduction. In: Regulating Hosting ISPs’ Responsibilities for Copyright Infringement. Springer, Singapore. https://doi.org/10.1007/978-981-10-8351-8_1
Download citation
DOI: https://doi.org/10.1007/978-981-10-8351-8_1
Published:
Publisher Name: Springer, Singapore
Print ISBN: 978-981-10-8350-1
Online ISBN: 978-981-10-8351-8
eBook Packages: Law and CriminologyLaw and Criminology (R0)