Intermediary Liability

Question 1

Article 8(3) of the Information Society Directive

Answer 1

Incorporated into UK law with CDPA s97A

Allows copyright owners to obtain injunctions that force ISPs to block access to infringing content

Question 2

Article 15 E-Commerce Directive

Answer 2

Member states can’t impose general monitoring obligations on ISPs as while they support IP rights they infringe FOI, privacy and freedom to conduct a business

Question 3

S23 CDPA

Answer 3

Possessing in course of business/distributing/dealing in infringing copies will constitute secondary infringement where you know or have a reason to believe that material infringes

Question 4

Pirate Bay

Answer 4

The Pirate Bay (TPB) was a bit-torrent tracker. The copyright owners pursued their main ISP under S97A of CDPA which requires ISPs to block infringing material if an injunction is obtained

Question 5

Article 14 of E-Commerce Directive

Answer 5

Immunity for liability incurred in the supply of hosting services as long as they remove infringing content expeditiously on acquiring actual knowledge that it’s infringing

Question 6

Web 2.0

Answer 6

User generated content and two-way communication. Social media comes after Web 2.0 and after social media comes augmented reality.
Platforms are key to Web 2.0 which is why intermediary liability is so important.

Question 7

Is it ok to circumvent technological measures.

Answer 7

No. Circumventing technological measures designed to protect copyrighted works, removing or altering ERMI or dealing with copies where ERMI has been removed is secondary infringement.

Question 8

ERMI

Answer 8

Electronic Rights Management Information

Question 9

How has intermediary liability been harmonised in the EU?

Answer 9

The harmonisation applies in an evasive negative way. The E-Commerce Directive only sets out when Member States CANT impose liability but doesnt say when they should, so national rules continue to converge.

Question 10

E-Commerce Directive

Answer 10

A set of EU Safe Harbour provisions. Grants intermediaries immunity from liability for: mere conduit (article 12- can’t stop/start/edit), caching (article 13) or hosting (article 14)

Question 11

Is an administrative process a good way to deal with notice & take down requests?

Answer 11

No, it doesn’t have the same judicial guarantees for plaintiffs/defendants.
It takes too long (annoys rights holders) and a lot of requests are for content that is arguably parody. Such potential for abuse that French constitutional court ruled French administrative body unconstitutional.

Question 12

Vicarious liability for copyright infringement?

Answer 12

If your servant/agent infringes with you authority. Performing Right Society Ltd v Mitchell and Booker

Question 13

S22 CDPA

Answer 13

Importing an infringing copy you know/have reason to believe is infringing is secondary infringement.

Question 14

DMCA S512(c)

Answer 14

U.S safe harbour provision on condition (1) not aware of infringement (2) no direct financial benefit (3) remove expeditiously on notice of alleged infringement

Question 15

Secondary infringement

Answer 15

CDPA.
S22/23- importing/possessing/dealing in infringing copies knowing/having reason to believe it infringes
S24(1)- making/importing/selling/possessing in course of business an article made or adapted for copying when you know/suspect its being used to make infringing copies
S24(2) Transmitting work by telecommunication knowing/suspecting that infringing copies will be made
S296-299- Circumventing technological measures and ERMi

Question 16

Viacom v Google

Answer 16

U.S case Rights holders can pursue those in distribution chain (google owned youtube where lot of infringing content)- judge held safe harbour provision protected Google (S512 DMCA)

Question 17

3 strikes and you’re out law

Answer 17

Graduated approach where repeated infringers can have their access to the internet denied if the infringing content is not taken down

Question 18

What is intermediary liability and whats the key question for intermediary liability on the internet

Answer 18

It’s when someone who isnt directly involved in the infringing act is liable. The key question is whether manufacturing/distributing a device or operating an Internet-based service that facilitates the copyright infringement of others amounts to infringement in and of itself

Question 19

Can we apply U/S intermediary liability cases to uk?

Answer 19

No, the safe harbour provisions are different. (US is DMCA, EU is E-Commerce Directive)

Question 20

Take-down notices

Answer 20

Sets out what agent in Us must do to avoid liability. DMCA S512(c) for those storing infringing material- 1) no direct financial benefit 2) not aware of infringement 3) remove expeditiously on receiving notice
EU doesnt have one, Finland is only county with proper take-down procedure.

Question 21

U.K Digital Economy Act 2010

Answer 21

Creates 2 new obligations for ISPs. 1) Notify subscribers if their IP address is reported as infringing copyright
2) Tracking reports and maintaining list( Copyright Infringement List) that copyright owners can get a court order to obtain personal details and take action against.

Question 22

Joint tortfeasance

Answer 22

Multiple people can be held liable if they’re all connected with the same infringement. Test is in SABAD SpA v MFI Furnitute- each joint tortfeasor must be ‘so involved in the commission of the tort’ as to make the infringing act their own

Question 23

Grokster

Answer 23

U-S case Grokster was found liable for distributing a device capable of both lawful and unlawful uses as it promoted the use to infringe which went beyond mere distribution and made them liable for third party infringement despite the legal uses

Question 24

CDPA s24

Answer 24

S24(1)- making/importing/selling/hiring/possesssing in course of business an article made or adapted for making copies is secondary infringement if you know or suspect it’s being used to make copies
S24(2) - transmitting work by telecommunication is secondary infringement if you know or suspect that copies will be made by transmission

Question 25

General monitoring obligations on ISPs

Answer 25

• Could only be done by deep-packet inspection

Article 15 of ECOmmerce Directive says member states can’t impose general monitoring obligations on ISPs.

Question 26

Napster

Answer 26

U.S Case
Napster liable for contributory infringement to extent it failed to purge specific infringing material it had knowledge of from its system
Napster vicariously liable as it had right/ability to police infringing activities and a direct financial interest in those activities and it was therefore under a duty to police its system within the limits of what was technically practicable

Question 27

Authorisation in UK

Answer 27

16(2) of CDPA grants copyright owner the right to authorise others to engage in certain activities so copyright will be infringed when someone authorises another to commit act breaching it.
Authorisation isn’t enabling/assisting/encouraging, they must have apparent/actual control (see CBS v Amstrad)

Question 28

CBS v Amstrad

Answer 28

Defined authorisation as ‘grant or purport to grant to a third person to do the act complained of’ whether on his own account or that of the grantor.
Held selling high-speed hfs systems that could be use to infringe copyright wasn’t authorisation even though it was clear it might be used to infringe

Question 29

When does vicarious/contributory liability arise in U.S

Answer 29

Vicarious liability- right/ability to supervise AND direct financial interest in infringing activity even in absence of actual knowledge of infringmeent
Contributory liability- when someone with knowledge of infringement induces/causes/materially contributes to infringing conduct of another

Question 30

Newsbin 2

Answer 30

Twentieth Century Fox v BT Plc- court made a blocking order against BT with respect to a website called Newsbin2 under S97A of CDPA

Question 31

S97A CDPA

Answer 31

Implemented Article 8(3) of Information Society Directive- allows copyright owners to obtain injunctions against ISPs that force them to block/impede access to infringing content

Question 32

Newsbin 1

Answer 32

Court found Newsbins accessory liability, ignoring precedent in Amstrad judgement.
Found to have infringed as a reasonable member of their site would have deduced from Newsbin’s activities that they had the authority to grant permission to copy any film. Newsbin was also a joint tortfeasor with their premium members.