Limitations to liability for internet intermediaries Flashcards
What are limitations to liability?
There are some conditional safe harbors for internet service providers. Internet intermediaries are exempted from copyright infringement if they comply with some conditions, and this exemptions only apply to secondary infringement. The exemptions preclude monetary damages, not injunctive reliefs.
In the USA, the DMCA is in force, with section 512 “Online Copyright Infringement Liability Limitation Act”. And in the EU, the E-Commerce Directive (2000/31/EC), sec. 4 “Liability of intermediary service
providers”
What an OSP (Online Service Provider) should do in case it is notified about an infringement in the us?
- Two ways in which an OSP can acquire knowledge of infringing material:
1) Notice from the copyright owner (“notice-and-takedown”)
2) Existence of “red flags”: awareness of facts and circumstances from which an infringing activity would have been apparent to a reasonable person operating under the same or similar circumstances - Upon receiving such knowledge, the OSP must act expeditiously to “take down” the content
- The OSP must have in place a system of “notice and takedown” (which includes counter-notice and “put back”)
DMCA - § 512(c): safe harbor provision for online storage
(1) A service provider shall not be liable for monetary relief […] for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—
(A)
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which
the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement . . . responds expeditiously to remove, or disable access to,
the material that is claimed to be infringing or to be the subject of infringing activity.
What is the notice-and-takedown system?
The notice-and-takedown system allows rightsholders to send a notification to the online service provider regarding infringing material that appears on the service provider’s system. online service providers must comply with the requirements of the notice-and-takedown system in order to qualify for the safe harbors.
What does the Directive 200/31/EC sec.4 say about non-liability for the information transmitted or stored?
- Mere conduit Art. 12:
→ Transmission of information
On condition that:
a) It does not initiate the transmission
b) It does not select the receiver of the transmission
c) It does not select or modify the information - Caching Art. 13:
→ Temporary storage of information for technical reasons
On condition that: […]
e) It acts expeditiously to remove or to disable access to the information it has stored upon obtaining
actual knowledge that the information at the initial source has been removed from the network […] - Hosting Art. 14:
→ Storage of information provided by a recipient of the service
On condition that:
a) It does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
b) upon obtaining such knowledge acts expeditiously to remove or to disable the information
Moreover, ISPs shall be exempt from any obligation to monitor the information transmitted or stored:
* No general obligation to monitor (Art. 15) Nor to actively seeking facts or circumstances indicating illegal activity
* These immunities prevent financial liability, but do not exempt ISSPs from injunctive relief
When does a platform operator qualify for the hosting “safe harbour” (art. 14 eCommerce Dir)?
❑ The safe harbours do not apply when the intermediary performs an act of direct copyright infringement (e.g. communication to the public).
❑ The fact that a platform took proactive steps to avoid that infringing activities are performed by users of its service, should not automatically exclude the application of the hosting safe harbour.
❑ “Actual knowledge”:
▪ The infringing activity must be “specifically established or readily identifiable”
▪ The circumstance that a platform has implemented an automatic filtering system does not automatically entail that it has also specific knowledge of illegal activities.
According to DSM Copyright Directive (2019/790), what is an OCSSP (Online Content Sharing Service Provider)?
Art. 2(6)
‘online content-sharing service provider’ means a provider of an information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organises and promotes for profit-making purposes.
Providers of services, such as not-for-profit online encyclopedias, not-for-profit educational and
scientific repositories, open source software-developing and-sharing platforms, providers of
electronic communications services as defined in Directive (EU) 2018/1972, online marketplaces, business-to-business cloud services and cloud services that allow users to upload content for their own use, are not ‘online content-sharing service providers’ within the meaning of this Directive.
YES: YouTube, Facebook, Instagram, TikTok, Pinterest, Snapchat, …
NO: Wikipedia, Researchgate, GitHub, WhatsApp, Discord, Dropbox, Amazon, eBay, …
According to DSM Copyright Directive (2019/790), when does an OCSSP performs an act of communication to the public?
when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users. An online content-sharing service provider shall therefore obtain an authorisation from the rightholders
- If no authorisation is granted, OCSSPs shall be liable for unauthorised acts of communication to the public
[…] unless it demonstrate that they have:
(a) made best efforts to obtain an authorisation, and
(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the
unavailability of specific works and other subject matter for which the rightholders have provided the service
providers with the relevant and necessary information; and in any event
(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable
access to, or to remove from their websites, the notified works or other subject matter, and made best efforts
to prevent their future uploads in accordance with point (b).
According to DSM Copyright Directive (2019/790), what are the OCSSP exceptions when uploading content generated by users?
- The cooperation between online content-sharing service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation.
Member States shall ensure that users in each Member State are able to rely on any of the following existing
exceptions or limitations when uploading and making available content generated by users on online contentsharing services:
(a) quotation, criticism or review
(b) Use for the purpose of parody
