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Copyright

May 14, 2018

As the Internet facilitates nearly costless and limitless reproduction of copyrighted works, policy makers and courts have struggled to find the right balance between competing goals. These include: 1) mitigating risks and providing legal certainty to Internet intermediaries that transmit or host content; 2) allowing copyright owners to fight piracy and unlawful use of protected works; and 3) safeguarding the interests of internet users in finding, producing, remixing, and transmitting content through the Internet.

In the United States, Section 512 of the Digital Millennium Copyright Act (DMCA), protects intermediaries who meet certain conditions from damages for copyright infringing activities of their users or third parties. To benefit from these so-called safe harbors, intermediaries must -- among other things -- remove infringing content upon knowledge and implement a system to receive notifications about the existence of copyright infringing material on their platforms. The DMCA spells out additional detailed procedures, including the possibility for accused users to provide ‘counter-notice’ and have content reinstated.

The general notice and takedown standard created by the DMCA was replicated in domestic legislation of many other countries. Similar knowledge-based liability models exist in multiple jurisdictions to allow the removal of other types of unlawful content - for example, under the EU’s eCommerce Directive and South Korea’s copyright law. Despite the broad adoption of these standards, the model has been criticized from many different perspectives.

On one side, some public interest groups and academics argue that the notice-and-takedown system provides incentives for intermediaries to err on the side of removal to avoid liability, leading to the suppression of perfectly legal content (this argument is supported by empirical studies documenting over-removal). To address these problems, different countries have created variations on the system. Chilean legislation, for example, establishes that intermediaries will only lose the safe harbors against monetary liability if they fail to comply with a court order requiring the removal of infringing content, while the Canadian legislation (learn more about it here) establishes a notice and notice system, requiring that the intermediary forward the notification of infringement to the user that posted the allegedly infringing material.

On the other side, copyright owners assert that more should be done by intermediaries to protect intellectual property online. In particular, many have argued for the use of technical filters to prevent reappearance of new copies once content has been removed based on a takedown request. This model (labeled by some as "notice-and-staydown") raises multiple concerns about threats to the rights of Internet users, as well as possible harms to competition and innovation, if Internet platforms are required to constantly monitor their users' expression. For more on this, see the Topic Page on Monitoring Obligations.

Complex issues of intermediary liability under copyright law go far beyond the examples above. They include questions about use of automation by either copyright claimants or intermediaries under notice and takedown systems (see this study) and questions of liability under background copyright law, outside of statutory notice and takedown regimes. This includes evolving case law in Europe regarding intermediaries’ liability for linking to infringing content.

Below, you can find the entries tagged as Copyright in the WILMap database. Check out the highlighted entries to explore some of the most important legislative approaches to copyright and intermediary liability, and to learn more about proposals for copyright reform currently under debate.

 

Please let us know if you identify any important development that should be included in the World Intermediary Liability Map database.

Other Resources

For more information on copyright issues, check the Kluwer Copyright Blog and the IPKat blog.

Entries

Featured

Proposed Law

European Commission, Proposal for a Directive on Copyright in the Digital Single Market, COM(2016) 593 final, September 14, 2016

The draft directive aims—inter alia—to close the so called “value gap” between Internet platforms and copyright holders. To that end, the proposed reform includes a provision that would impact platform operations. It requires intermediaries “that store and provide access to large amounts of works . . . uploaded by their users” to take appropriate and proportionate “measures to ensure the functioning of agreements concluded with rightholders for the use of their works” or “to prevent the availability on their services of such works,” including through “the use of effective content identification technologies.”
Legislation

Copyright Act, last amended by Act No. 12137

( 1 ) Article 102 provides safe harbor for intermediaries from third party copyright infringement. The provision was amended twice in 2011 first to reflect the Korea-EU FTA and then the Korea-US FTA. EU Directive 2000/31/EC Section 4 “Liability of intermediary service providers” was almost exactly reproduced verbatim in the Intellectual Property chapter of the Korea-EU FTA, and the intellectual property chapter of the Korea-US FTA adopted the structure of DMCA safe harbor provisions. Therefore, it is no coincidence that the structure of Article 102 is very similar to that of EU Directive 2000/31/EC and DMCA. Paragraph ( 1 ) sets out specific conditions necessary for safe harbor for different types of Online Service Providers (OSPs). It classifies OSPs into four classes: mere conduits (subparagraph 1), caching...
Legislation

Copyright Modernization Act, SC 2012, c 20.

Copyright Modernization Act , SC 2012, c 20. ( 1 ) This is an amending Act to the Copyright Act (see below). Section 31.1 expands the exemption granted by section 2.4(1)(b) of the Copyright Act and is essentially a codification of the holdings from SOCAN v CAIP (see below). Section 31.1(1) states that ISPs, provided that they are content neutral, cannot be held liable by providing any means for Internet access. The fact that “any means” for telecommunication is used instead of “the means” necessary for telecommunication, which appears in section 2.4(1)(b), signifies that this provision is intended to cover a wider range of intermediaries that provide access to third party content such as blogging, video and social networking websites. Moreover, whereas section 2.4(1)(b) is only applicable in cases where the...
Legislation

Law No. 20.435,

Amending the Intellectual Property Law
Together with new copyright exceptions and limitations and the new rules for collecting societies’ tariff procedures, this amendement establishes a regime of limitations on liability for information service providers, as defined in Artice 5 Y . A number of Articles deal specifically with intermediary liability. Article 85 L provides a liability limitation for ISPs as long as they comply with the conditions and requirements of this law, regardless of potential regular civil liability. Article 85 M provides general conditions for limiting liability of transmission, routing, or connection providers that do not modify or select content, or initiate or select the destination of transmissions. Article 85 N provides general conditions for limiting liability among caching service providers that respect access and update...
International Agreement

Directive 2000/31/EC on Certain Legal Aspects of Information Society Services, in particular Electronic Commerce, in the Internal Market

( 1 ) Articles from 12 to 15 provides mere conduit, caching, and hosting exemptions for intermediaries, together with the exclusion of a general obligation on access, hosting and caching providers, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. ( 2 ) In particular, Article 14(1) provides that Member States shall ensure that hosting providers are not liable for the information stored at the request of the recipient, on condition that: ( a ) the provider 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 ) the provider, upon obtaining such knowledge or awareness,...
Legislation

Digital Millennium Copyright Act 1998, 17 U.S.C. § 512

Creating safe harbors for ISPs against monetary liability for copyright infringing material posted or sent through an intermediary’s system. Unlike §230, DMCA safe harbors don’t prevent suit for injunctive relief against an intermediary nor protect all Internet intermediaries except the four classes of intermediaries: conduit providers such as telephone companies, those who store or cache content hosted by another, and those who host content posted by another, and search engines. Safe harbor is available only to an intermediary that “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.” To benefit from the safe harbors, intermediaries must establish, publicize and implement both a notice and...

Africa

Court Decision

John Boniface Maina v Safaricom Limited

High Court of Kenya at Nairobi, eKLR, Civil Suit No. 808 fo 2012,
The plaintiff, a musician, successfully sued the defendant, a mobile telecommunication company for breach of copyright. The defendant had introduced a caller back ring tone service where they distributed the plaintiff music without authorization. The defendant was restrained from infringing upon the plaintiff’s copyright by offering for sale, selling or storing of any data relating to the plaintiff’s musical works. The defendant was also ordered to remove all the plaintiffs musical works from the website.
Legislation

Law N° 31/2009 on the Protection of Intellectual Property (Articles 255-264) (published in Official Gazette No. 50 bis of December 14, 2009)

( 1 ) Article 261 provides that any industrial or commercial use of an invention, utility model, industrial design and model, mark or other distinctive sign of business, trade name, geographical indication or layout design integrated circuit, which is the subject of a protection title granted under this law and made by any person other than the owner of the title and without his/her consent, shall constitute an act of forgery. ( 2 ) Any infringement of copyrights or related rights protected under this law, committed willfully or by gross negligence, by any third person for profit-making purposes and without owner’s right consent shall constitute an act of forgery. ( 3 ) Any third person, who knowingly sells, offers on sale, is making rent, detains or introduces on the territory of the Republic of Rwanda, the alleged...
International Agreement

Free Trade Agreement (FTA) between Morocco and the United Sates (MUSFTA)

This FTA contains provisions and side letters on intermediary liability, safe harbours and notice and taken down. Article 15.11.28 of the MUSFTA provides that: For the purpose of providing enforcement procedures that permit effective action against any act of infringement of copyright covered under this Chapter, including expeditious remedies to prevent infringements and criminal and civil remedies, each Party shall provide, consistent with the framework set forth in this Article: ( a ) legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials; and ( b ) limitations in its law regarding the scope of remedies available against service providers for copyright infringements that they do not control, initiate or direct, and that...
Legislation

Nigerian Copyright Act

Cap C28, 2004 The Act does not contain provisions specifically dedicated to Internet intermediaries. However, provisions that may be relevant for intermediary liability are listed below. Also, amendments to the law to include intermediary liability provisions are under discussion (see below). ( 1 ) Article 6 provides that copyright infringment can be enforced only through judicial injunctions : "infringement of copyright shall be actionable at the suite of the owner, assignee or an exclusive licensee of the copyright, as the case may be, in the Federal High Court exercising jurisdiction in the place where the infringement occurred; and in any action for such infringement, all such relief by way of damages, injunction, accounts or otherwise shall be available in any corresponding proceedings in respect of infringement...
Legislation

Copyright Act of 2001

( 1 ) Section 26 describes the nature of copyright in literary, audio-visual and musical or artistic works. It provides for the exclusive right of copyright holder to control reproduction and distribution of their works to the public; ( 2 ) Section 35 defines and describes what constitutes copyright infringement and imposes criminal liability for distribution or making available to the public protected works without a license; ( 3 ) Section 38 lists the offences and penalties for copyright infringement including the making and distribution of protected works without a license. ( 4 ) Neither the Copyright Act nor other legislation imposes specific penalties on service providers for failing to block or remove infringing content. However, the continued existence of copyright material on a website, can be construed as a...
Proposed Law

Copyright Amendment Bill, An Act to Amend the Copyright Act Cap. C28 Lpn 2004 for the Purposes of Making Provisions for Technological Measures in Protecting Copyright and for Other Related Matters, SB.03, 2011

The Copyright Amendment Bill seeks to amend the Copyright Act of 2004 and focuses primarily on the role of new technologies in the infringement of copyright, with provisions on Internet Service Providers’ (ISPs) liability, including ISPs exemptions for storing infringing material, for caching, a notice and take down regime and a termination for repeated infringers regime. Apparently, the Bill does not include a mere conduit exemption. ( 1 ) Section 3 provides that ISPs must have a termination policy for their Internet service subscribers that repeatedly infringe copyright. In particular, the Bill states that: ( i ) "An Internet Service Provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet Service Provider of a repeat...
Legislation

Act No. 98/1978, June 20, 1978, Copyright Act

Subjecting to liability for damages, interdict, delivery of infringing copies (section 24)… “any person who…does or causes any other person to do … any act which the owner has the exclusive rights to do or to authorize” (section 23) to criminal liability “any person who … without the authority of the owner of the copyright: … distributes … to such an extent that the owner of the copyright is prejudicially affected, articles which he knows to be infringing copies of the work (section 27).
Legislation

Copyright Act, Chapter 26:01, January 1st, 1967

( 1 ) Section 5(4) lists the acts restricted by copyright law with regard to a literary, dramatic or musical work. These restrictions entail “reproducing the work in any material form, publishing the work, performing the work in public, broadcasting the work, causing the work to be transmitted to subscribers to a diffusion service and making any adaption of the work.” ( 2 ) Section 57 makes anyone found guilty under the Copyright Act liable to the payment of a fine. ( 3 ) Section 58(3) states that “…no copyright or right in the nature of copy right shall subsist otherwise than by virtue of this Act or some other enactment in that behalf.”

Asia

Regulation

Provisions for the Administration of Internet News Information Service 2017

Revision of the Provisions for the Administration of Internet News Information Services 2005
Chapter I: General Provisions Article 1: In order to strengthen Internet information content management and stimulate the healthy and orderly development of Internet news information services, on the basis of the “ Cybersecurity Law of the People’s Republic of China ”, the “ Administrative Measures of Internet Information Services ”, and the “ Notice of the State Council on Charging the Cyberspace Administration of China with the Content Management of Information on the Internet ”, these Regulations are formulated. Article 2: These Regulations apply to the provision of Internet news information services within the territory of the People’s Republic of China News information as mentioned in these Regulations includes reporting and comments on politics, economic, military matters, foreign affairs and other such social...
Court Decision

District Court of Tel Aviv , Civil Action 37039-05-15, ZIR”A et al. vs. Anonymous, Bezeq Ben Leumi et al.

( 1 ) Several content providers sued ISPs to block access to the websites allowing users to download a streaming software called “Popcorn” which allows users to stream video content off the internet by connecting users to allegedly copyrighted content through other sites. The content providers also requested the details of users making use of Popcorn. ( 2 ) The court mentioned the UK case about the use of Popcorn software, Twentieth Century Fox Corp. v. Sky UK Ltd., 2015 EWHC 1082 (Ch) . However, the Court relied on the Israeli Supreme Court Ruling in 4447/07 Rami Mor vs. Barak ITC (1994) Bezeq international, with regard to revealing the indemnity of users of ISP. The Judge ruled that at this stage when the infringement was not proved, and it was not proved that the defendant was liable or has caused damages to...
Court Decision

District Court of Tel-Aviv, Civil Ruling 33227-11-13, NMC United Entertainment LTD et al. vs. Bloomberg et al.

( 1 ) This case involves unauthorized streaming and download of music recordings through the website Unidown. Five Israeli music record companies sued the owners of the website Unidown and several ISPs claiming that the website enables users to listen and download music recording copyrighted by them without authorization. The Website claimed that it merely functions as a “search engine” allowing users to listen to music recordings through youtube. ( 2 ) The District Court found that Unidown should be viewed as an infringing platform which enables the unauthorized download of copyrighted works in disguise of a “search engine”. The Judge claimed the problem is not with the technology but with the use been made of it. The court found with regard to the download function of Unidown, that the website enabled users through...
Court Decision

District Court of Tel-Aviv, Charlton Ltd. v. Bezeq International & Co., 2014 (PENDING) (official name of case not yet available)

In early April 2014, Charlton Ltd. filed a lawsuit in the Tel-Aviv district court against three major Israeli ISPs. Charlton is arguing that the ISPs have contributory liability with regard to streaming of sports events in which Charlton has copyrights. Charlton argues that the ISPs have the ability to easily monitor and prevent the infringement but choose not to act in that regard. Charlton is asking the court to instruct the ISPs to take down dozens of websites and reveal the identities of many users.
Court Decision

European Court of Human Rights (ECHR), Final Judgement, Akdeniz v. Turkey, 20877/10

( 1 ) Last.fm was blocked by Turkish courts at the request of a local group representing rights holders. It was challenged by the applicant simply as a user of the site, without involvement by last.fm or local ISPs. He was denied standing by Turkish courts. ( 2 ) The Second Section ECHR found that the applicant could not claim to be a victim of an Article 10 violation. Two main arguments were put forward to sustain the inadmissibility decision: ( a ) the content was available to the applicant through other means and was not ‘of special interest’ to the applicant (cf. Khurshid Mustafa case where Iraqi family was prevented by landlord from installing a satellite dish to receive Arabic channels not available otherwise) (para. 25); ( b ) the case did not raise an important question of general interest – i.e. it was not...
Legislation

Copyright Act, as amended on January 22, 2014

( 1 ) Intermediary Liability of Copyright Infringement . The inducement liability of copyright infringement was enacted in 2007 under the influence of the U.S. Supreme Court’s decision, MGM v. Grokster, 545 U.S. 913 (2005). However, there is a critical difference between them with regard to the requirement of the resulting acts of infringement by a third party. In Grokster, the court holds that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” However, according to the subparagraph 7 of paragraph 1, article 87 of Taiwan’s Copyright Act, the intermediary’s behavior of enabling copyright infringement itself can be deemed an...
Legislation

Copyright Act, last amended by Act No. 12137

( 1 ) Article 102 provides safe harbor for intermediaries from third party copyright infringement. The provision was amended twice in 2011 first to reflect the Korea-EU FTA and then the Korea-US FTA. EU Directive 2000/31/EC Section 4 “Liability of intermediary service providers” was almost exactly reproduced verbatim in the Intellectual Property chapter of the Korea-EU FTA, and the intellectual property chapter of the Korea-US FTA adopted the structure of DMCA safe harbor provisions. Therefore, it is no coincidence that the structure of Article 102 is very similar to that of EU Directive 2000/31/EC and DMCA. Paragraph ( 1 ) sets out specific conditions necessary for safe harbor for different types of Online Service Providers (OSPs). It classifies OSPs into four classes: mere conduits (subparagraph 1), caching...
Court Decision

Supreme Court Decision 2011Do1435

( 1 ) In this decision, the Supreme Court clarified that the safe harbor under Article 102 of the Copyright Act (before it was amended by Act no. 8852 on 29 February 2008) also applies to criminal liabilities . ( 2 ) The Supreme Court further explained the meaning of being “ technically impossible ” under Article 102(2). In this case, the defendants implemented filtering measures utilizing hash values and banned keyword lists. The Supreme Court found that those measures were not state of the art measures available and didn’t even work properly, and therefore the defendants cannot resort to the safe harbor under Article 102(2).
Court Decision

Supreme Court, Civil Appeal 9183/09, The Football Association Premier League Ltd v John Doe (2012)

This case involves unauthorized streaming of live soccer games of the English Premier League. The Supreme Court suggests in dicta several possibilities to further establish Contributory Liability with regard to ISPs. Since no arguments were raised regarding Contributory Liability in this case, the discussion is merely illustrative. In this case the English Premier League requested that an ISP reveal the name of the person who infringed on its copyright. Justice Neal Hendel argued that direct liability against ISPs could be established through the duty of care found under Negligence, but Justice Hanan Melcer argued that Contributory Liability with regard to ISPs should be based on unjust enrichment. The Court concluded that since the argument of Contributory Liability was not raised in this case, no decision will be...
Court Decision

23-1(A) KCCR 53, 2009Hun-Ba13, 52, 110 (consolidated)

Majority of the Constitutional Court found Article 104 of the Copyright Act constitutional. However, two Justices dissented, stating that it is unconstitutional to delegate the authority to determine the notion of special types of OSPs to the announcement of the Minister of Culture, Sports and Tourism.
Court Decision

District Court of Tel-Aviv, 567-08-09, ALIS - Association for the Protection of Cinematic Works v. Rotter.net Ltd.

Influenced by the Supreme Court’s decision Hebrew University vs. Schocken , the district court in Tel-Aviv. The case involved a website which posted Links to copyrighted works which were posted without authorization. The Court examined the liability of the website for posting only the links and not the actual infringing works. The Court ruled that website could not be held directly liable for posting links to infringing works, as the posting of the links are not infringing on their own, therefore, there is no direct liability. The Court takes into consideration the recent Supreme Court decision Hebrew University vs. Schocken , and rules that in order to establish the element of actual knowledge of the infringement for Contributory Liability, there should be a notice and take down procedure. If intermediary operate a...
Court Decision

Court of Appeal, Civil Action, RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd, [2011] 1 SLR 830; [2010] SGCA 43

( 1 ) The appellant/plaintiff, RecordTV, was the provider of a remote-store digital video recorder service, known as iDVR or Internet digital video recorder, which allowed its registered users to request the recording of the respondents/defendants' free-to-air broadcasts in Singapore, based on the scheduling information of the respondents' programming which the appellant has provided. The respondents' broadcasts were received by the appellant's roof-mounted antenna and routed to the appellant's recording computers. If a registered user requested a recording, the appellant's control software would instruct the system to record the said program. Once a recording was made and stored on the appellant's premises' computers, it was made available for viewing to the user who requested the recording on their computers or their...
Court Decision

First Criminal Court of Peace of Diyarbakır, Digiturk

The Court lifted its blocking order (ban to the two domains and their IP addresses) with regards to Blogger.com and Blogspot. Digiturk, a subscription based digital TV platform in Turkey which owns the right to transmit the live coverage of the Turkish football league games. Access blocking is allowed under supplemental article 4 of the Law No. 5846 on Intellectual & Artistic Works.
Legislation

The Copyright Act of 2007 (Unofficial English Version)

Section 18 establishes the permitted uses within the framework of the Copyright Act, these permitted uses are set out in Sections 19-30 . Section 26 deals with “temporary copies” created in the context of communications network, operated by an intermediary entity. According to Section 26 such transient copying, including incidental copying, is permitted if the copying is: ( i ) an integral part of a technological process and the only purpose of which is to enable transmission; ( ii ) between two parties, thorough a communication network, by an intermediary entity, or any other lawful use of the work; ( iii ) provided the said copy does not have significant economic value in itself. In addition, Section 58 defines an “Innocent Infringer”. In case an infringer “did not know, or could not have known, at the time of the...
International Agreement

Agreement between the Government of Japan and the Government of Malaysia for an Economic Partnership

The Agreement contains Article 122 (2) : “Each Country shall provide for appropriate measures concerning limitations on liability for service providers: ( a ) in case where a service provider provides a necessary deterrent to the transmission of information through telecommunication systems or networks controlled or operated by the service provider which it believes to be the infringement of copyright or related rights; and ( b ) in case where the infringement of copyright or related rights occurs by the transmission of information through telecommunication systems or networks controlled or operated by a service provider and where the service provider is technically unable to deter the transmission or has difficulty in finding the infringement of copyright or related rights.
Legislation

Copyright Act, Parliamentary Legislation, Chapter 63, Revised Edition 2006, January 31, 2006 (originally Apr. 19, 1987) (An Act relating to copyright and matters related thereto)

In 1999, Singapore made its first amendments to the Copyright Act to introduce various safe harbor defenses for Internet intermediaries as network service providers. Arising from its obligations under the U.S. Singapore Free Trade Agreement, Singapore further revised in 2004 the safe harbor defenses in the Copyright Act for network service providers. ( 1 ) Section 193A of the Copyright Act states that the safe harbor defenses are to apply to “network service providers”, which includes ISPs as intermediaries providing services and connections for data transmission or routing, as well as intermediaries who provide or operate facilities for online services or network access. It would seem that “network service providers” are broadly defined so that most Internet intermediaries would qualify for the safe harbor defenses....
Court Decision

Tokio High Court, Shogakan case, reversing Tokyo District Court

( 1 ) With respect to a copyright infringement case involving Channel 2 where a user uploaded a small part of a copyrighted work onto the bulletin board, the Tokyo District Court held that Channel 2 only had a duty to remove works suspected of copyright infringement if it transmitted the infringing content or otherwise it was “obvious” the content infringed a third party’s copyright. The Tokyo District Court stated that Channel 2 was only an intermediary for transmitting third party information and that the sender of the email that contained the copyrighted work was the party that committed the unlawful act. ( 2 ) However, the appellant court (Tokyo High Court) reversed the Tokyo District Court decision and ruled that it was obvious that the uploaded contents are simply a copy of copyrighted work, and therefore Channel...
Legislation

Law No. 5846, December 5, 1951, Turkish Code of Intellectual and Artistic Works, as Amended by Law No. 5101/25 of March 3, 2004 (English Version)

Access blocking is a legal remedy for intellectual property infringements provided under supplemental Article 4 (see Annex 4, Amendment: 3.3.2004-5101/25 within the English text linked above) of the Law No. 5846 on Intellectual & Artistic Works. This provision was introduced in March 2004 and provides a two-stage approach. Initially the law requires the hosting, content or access providers to take down the infringing content from their servers upon “notice” given to them by the right holders. The providers need to take action within 72 hrs. If the allegedly infringing content is not taken down or there is no response from the providers, the right holders can ask the Public Prosecutor to provide for a blocking order, and the blocking order is executed within 72 hours.
Court Decision

Tokyo High Court Decision, File Rogue case, March 31, 2005, upholding Tokyo District Court

( 1 ) With respect to a copyright infringement case involving Channel 2 where a user uploaded a small part of a copyrighted work onto the bulletin board, the Tokyo District Court held that Channel 2 only had a duty to remove works suspected of copyright infringement if it transmitted the infringing content or otherwise it was “obvious” the content infringed a third party’s copyright. The Tokyo District Court stated that Channel 2 was only an intermediary for transmitting third party information and that the sender of the email that contained the copyrighted work was the party that committed the unlawful act. ( 2 ) However, the appellant court (Tokyo High Court) reversed the Tokyo District Court decision and ruled that it was obvious that the uploaded contents are simply a copy of copyrighted work, and therefore Channel...
Court Decision

High Court, Civil Action, Odex Pte. Ltd. v. Pacific Internet Ltd., [2008] SGHC 35, [2008] 3 SLR 18

( 1 ) Odex was a private company that provided Japanese anime programs to local television stations for broadcasting. It also distributed authorized copies of these programs to retailers for sale to the public. Odex alleged that with Internet piracy and the ease of obtaining DVD-quality movie files for free via P2P software, its sales of anime video titles had begun to drop significantly and that TV stations also bought fewer anime titles as they were allegedly losing viewership to illegal downloaders. ( 2 ) To address this problem, Odex engaged the services of BayTSP.com Incorporated (BayTSP), an American company, to collect and track instances of unauthorized uploading and downloading of copies of Japanese anime video titles. Through BayTSP, Odex discovered that there had been more than 474,000 unique downloads over...
Legislation

Copyright Act of 1987, Act 322

Section 36(1) Copyright Act 1987 provided a measure against primary infringers “Copyright is infringed by any person who does”, and secondary infringers “or causes any other person to do,” without the licence of the owner of the copyright, an act the doing of which is controlled by copyright under this Act. According to Daniel Seng, the Copyright Act 1987 is based on the UK Copyright Act 1911, hence UK cases on the element of “authorizing infringement” will be highly persuasive to Malaysian courts. Because of the emphasis on control that a secondary defendant has to exercise over a primary infringer in U.K. cases to be held liable for “causing” the primary infringer to commit an infringing act, Seng believed that if Malaysian courts would follow U.K. case law it was unlikely that they would find an Internet...
Proposed Law

Copyright Amendment Bill 2014

( 1 ) Establishing a statutory ‘safe harbour’ for OSPs so that their liabilities for copyright infringement occurring on their service platforms could be limited, provided that OSPs meet certain prescribed conditions, including the taking of reasonable steps to limit or stop copyright infringement when being notified. ( 2 ) The proposal aims at facilitating OSPs’ handling of alleged infringement balancing the interests between copyright owners and users. Under the proposed ‘safe harbour’ provisions, OSPs’ liabilities for copyright infringement occurring on their service platforms could be limited provided that they meet certain prescribed conditions, including the taking of reasonable steps to limit or stop copyright infringement when being notified. ( 3 ) The ‘safe harbour’ will be underpinned by a Code of Practice...
Proposed Law

Consultation on Draft Code of Practice for the reference of Online Service Providers (8 August 2011 to 9 September 2011)

When HK government introduced the 2011 Copyright (Amendment) Bill into the Legislative Council, it also brought into sight the statutory ‘safe harbour’ for OSPs so as to protect their potential liability for copyright infringement on their platforms with a non-statutory Code of Practice that sets out the procedures for copyright owners to serve notices of alleged infringement and for subscribers to serve counter notices, the draft was finalized in 2012: ( a ) Instead of setting a specific time frame within which OSPs must take action to limit and stop a particular infringement, the revised draft Code requires OSPs to act as soon as practicable; ( b ) In view of the privacy concerns raised by some respondents, HK has made changes under which a subscriber may choose to request the OSP not to disclose his personal data...
Legislation

The Copyright Act of 1957, as amended by the Copyright (Amendment) Act 2012

( 1 ) The protection provided to intermediaries under Section 79 of the Information Technology Act (see below) is not available for offences under the Copyright Act of 1957 as amended by the Copyright (Amendment) Act of 2012. ( 2 ) The Copyright Act was amended by the Copyright Amendment Act of 2012 and contains some provisions affecting the intermediaries. Section 52(b) of the act provides that transient or incidental storage of a work made in the technical process of electronic transmission or communication to the public shall not constitute copyright infringement. Further, Section 52(c) stipulates that transient and incidental storage of a work for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, shall not...
Regulation

Regulation on Protection of the Right to Network Dissemination of Information, State Council Order No. 468, May 18, 2006, amended in accordance with the Decision of the State Council on Amending the Regulation on Protection of the Right to Network Dissemination of Information on January 30, 2013`

Clarifying the "Fair Use" Exception under the PRC Copyright Law (article 6), standards of network dissemination of information including how to address a potential violation. Establishing a more stringent standard for continued violators including civil and criminal liabilities for illegal network distributions and cyber equipment associated with such distributions/disseminations.
Court Decision

Judicial Interpretation No. 20 [2012] of the Supreme People's Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks, December 17, 2012 [English Version]

This Judicial Interpretation provides the detailed rules on deciding Internet intermediary’s liability for copyright infringement. ( 1 ) First, whether an Internet intermediary ought to be liable mainly depends whether it is at fault for the copyright infringement in question. In light of Article 8 , the fault means Internet intermediaries actually know or should know the copyright infringement concerned. ( 2 ) Second, the Judicial Interpretation ( Article 8 ) clarifies that Internet intermediaries have no obligation to actively monitor their services, and if they have already taken reasonable and effective technical measures but still could not know the infringement, they should not be held as being at fault. ( 3 ) Third, regarding what constitutes “ should know ”, the Judicial Interpretation ( Article 9, 10 and 12 )...
Court Decision

Beijing Higher People’s Court [北京市高级人民法院], Zhong Qin Wen v. Baidu [中青文v.百度], 2014 Gao Min Zhong Zi No. 2045, [(2014)高民终字第2045号], 2014

( 1 ) In this case, the plaintiff Zhong Qin Wen found some of its copyrighted works made available on the platform BaiduWenku and sued Baidu for copyright infringement. Baidu claimed that BaiduWenku was just a platform for Internet users to upload and share materials, and it had fulfill reasonable duty of care to prevent infringement on its platform, so it should not be held liable. ( 2 ) The Beijing First Intermediate People’s Court held that Baidu was incapable of monitoring all uploads and did not directly benefit from infringement, but should know the infringing uploads in question. According to the decision, the defendant Baidu kept the viewing and downloading data of each uploaded work. By using current technologies, it was reasonable for Baidu to execute a monitoring mechanism in light of which, once an uploaded...
Court Decision

Beijing High Court, Go East Entertainment Co. Ltd. (H.K.) v. Beijing Alibaba Technology Co., Ltd., (2007) Er Zhong Min Chu Zi No. 02627, December 20, 2007

Court held that defendant search engine Alibaba is liable for taking down 15 of the 26 allegedly infringing recording in accordance with the take-down notices. Although Alibaba claims that it removed all 15 links that the Plaintiff sent them in regards to the take-down, the Court held that Alibaba should know that its 26 recordings are infringing Plaintiff’s copyright and thus Alibaba is negligent in discharging its duty to take steps to terminate the links to all 26 recordings.
Court Decision

Beijing District High Court , EMI Group Hong Kong Limited v. Beijing Baidu Network Technology Co. Ltd., (2007) Gao Min Zhong Zi No. 593, November 17, 2006

Court rejected EMI’s claim against the search engine Baidu because EMI’s take-down notice to Baidu did not comply with the requisite formalities, and thus failed to specify the names of the works, their authors and the web addresses whose the infringing works were found. The Court cited Article 8, Paragraph 1 of the Interpretations of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Copyright Disputes over Computer Network (2004): “Where any copyright owner who, upon finding out the infringing information, warns the Internet service provider about this or requests for the network registration material of the infringer, but is unable to produce proofs of his the copyright owner’s identification, ownership of the copyright and the circumstance of the...
Court Decision

Beijing Chaoyang District Court (北京市朝阳区人民法院), Chineseall.com v. 178.com [北京中文在线v.北京智珠网络技术], (2013) Chao Min Chu Zi No. 8854 [朝民初字第8854号], December 20, 2013

( 1 ) In this case, the BBS operated by the defendant “178.com” had a sub-platform for subscribers to upload ePub-formatted e-books, and a copyrighted book owned by the plaintiff had been uploaded without permission, so the plaintiff sued 178.com for copyright infringement. (2) According to the court investigation, the defendant had a policy of rewarding these subscribers who uploaded content or replied to such content with virtual “silver coins”. Further, the defendant also appointed a moderator to manage the materials uploaded by subscribers. In this case, the infringing materials concerned was highlighted and edited by the moderator, so the moderator appointed by the defendant in fact promoted the transmission of infringing materials concerned. Based on the two reasons above, ChaoYang District Court in Beijing held...
Court Decision

No. 2 Intermediate People's Court of Beijing Municipality, Shanghai Push Sound Music & Entertainment Co., Ltd. v. Beijing FashioNow Co. Ltd., (2005) Er Zhong Min Chu Zi No. 13739, December 19, 2006

Holding that the Defendants, developers, and operators of the P2P website and client software “Kuro” liable under Article 130 of the General Principles of the Civil Law, in contributory infringement for intentionally providing assistance to the website users who shared and infringed the copyright holder’s right in its recordings. The Court placed a heavy emphasis on the right compilation and integration between the P2P client software and the system of selection, classification and categorization of the users’ shared recordings which the defendants operated on their website.
Court Decision

No. 2 Intermediate People's Court of Beijing Municipality , Music Copyright Society of China v. Netease Com., Inc. & Mobile Communications Corp., September 20, 2002

Holding that the defendant, who operated the website chinamp3.com, was not liable for disseminating the plaintiff’s sound recordings by merely linking to them, by selecting, organizing and finalizing the various links to infringing third party sources. However, because the Defendant could discriminate between licensed and unlicensed recordings, and that the Defendant ignored his duties and intentional participation in the illegal dissemination of unlicensed recordings, Defendant is jointly liable with the third party websites under Article 130 of the General Principles of the Civil Law.
Court Decision

No. 2 Intermediate People's Court of Beijing Municipality, Music Copyright Society of China v. Netease Com., Inc. & Mobile Communications Corp., (2002) Er Zhong Min Chu No. 3119, September 20, 2002

Holding that because Mobile Communications were merely providing a technical and passive service of network dissemination for receiving ringtones sent by Netease and forwarding them to its subscribers, it was not liable to an infringement. The Court further considered evidence that Mobile Communications was unable to select, examine or selectively delete the contents of the messages. Therefore, Mobile Communications has no duty and not at fault for the occurrence of the infringement when Netease used Mobile Communications’ services to transmit unlicensed (copyrighted) ringtones to its subscribers.
Legislation

Copyright Amendments Act of 1990 (Act A775), and 2012 (Act 1420), before amended in 1996 (Act A952), 1997 (Act A994), 2000 (Act A1082), 2002 (Act A1139) and 2003 (Act 1195)

In 2012 Section 36(1) Copyright Act 1987 remains unaltered in the amendment (Act A1420) of 2012. However, Part VIB ‘Limitation of Liabilities of the Service Provider’ Sections 43B-I, was added which provides a safe harbor provision for internet intermediary liability for copyright infringement. The provisions are similar to the DMCA in the US in which ISPs and content aggregators are provided immunity from liability for copyright infringement if they protect copyright owners by removing or disabling access to infringing content. 43B. Interpretation A service provider is a person who provides services relating to, or provides connections for, the access, transmission or routing of data; or operates facilities for, online services or network access. 43C. Transmission, routing and provision of connections ( 1 ) A service...
Legislation

Copyright (Amendment) Act 2014, An Act to Amend the Copyright Act (Chapter 63 of the 2006 Revised Edition), July 2014

( 1 ) The Singapore Paliament passed an anti-piracy amendment to the Copyright Act, which will enter into force at the end of August 2014, to allow right holders to apply directly to the courts for injunctions against Internet Service Providers to prevent users from accessing the so-called “pirate sites” without having to first establish ISPs’ liability for copyright infringement. The new bill provides copyright holders with an express lane to take down the content or block the hosting site within eight weeks, if the High Court signals a green light. ( 2 ) The so-called “pirated sites”, known in the proposal as “flagrantly infringing online location”, are to be assessed by the courts based on certain non-exhaustive factors, including ( i ) whether the online location’s primary purpose is to commit or facilitate...
Proposed Law

Bill, Apr 7, 2014, Proposed Amendments to Revise the Copyright Act to empower the courts to make site blocking orders

The Singapore Ministry of Law is proposing legislative amendments to allow right holders to apply directly to the courts for injunctions against Internet Service Providers to prevent users from accessing the so-called “pirate sites” without having to first establish ISPs’ liability for copyright infringement. The so-called “pirated sites”, known in the proposal as “egregious online locations”, are to be assessed by the courts based on certain non-exhaustive factors, including ( 1 ) whether the online location’s primary purpose is to commit or facilitate copyright infringement, ( 2 ) whether it makes available or contains directories, indexes or categories of the “means to commit copyright infringement”, ( 3 ) whether the owner of the location “demonstrates a disregard for copyright”, ( 4 ) whether the location has been...
Proposed Law

Bill on Telecommunication Act

A telecommunications enterprise is required to remove content if an "administrative agency" (not a court) in authority deems that the content violate a law or regulation, such as copyright or defamation law, and the removal is technically possible (paragraph 2 of article 9). The bill was temporally shelved in 2013 due to the controversy, but it is likely the bill will be sent to the Legislature Yuan again with some revision in the future.
Proposed Law

Taiwan Intellectual Property Office (TIPO) Bill [TIPO's Press Release]

TIPO's Press Release There was a controversial SOPA-like bill proposed by Taiwan Intellectual Property Office (TIPO) last year, which authorized TIPO to block websites from other jurisdictions if it deems the role of website in contributing copyright infringement is "obvious." The bill was withdrawn due the severe opposition from online communities and significant coverage in media.
Administrative Decision

Intellectual Property Court, Year 2010, Sin-Tsu-Shan-Yi-Tsu No. 52, Criminal Case (智慧財產法院99年度刑智上易字第52號刑事判決)

After the enactment of inducement liability of copyright infringement, one important cases of peer-to-peer file sharing services was decided on the ground of inducement liability. This case involved a program called Foxy, which was very popular in Taiwan for few years. The defendant was found guilty in co-perpetration of joint copyright infringement of article 92 and the inducement of copyright infringement of paragraph 4, article 93 of Taiwan’s Copyright Act.
Administrative Decision

Intellectual Property Court, Year 2010, Sin-Tsu-Shan-Yi-Tsu No. 59, Criminal Case (智慧財產法院99年度刑智上易字第59號刑事判決)

Another case of peer-to-peer file sharing services involving a less known program called Kupeer was also decided on the ground of inducement liability. The defendant was found guilty in co-perpetration of joint copyright infringement of article 92 and the inducement of copyright infringement of paragraph 4, article 93 of Taiwan’s Copyright Act.
Administrative Decision

Intellectual Property Court, Year 2010, Xing-Zhi-Shang-Geng-(II), NO.24, Criminal Case [智慧財產法院99年度刑智上更(二)第24號刑事判決]

In contrast to Kuro, another peer-to-peer file sharing services, ezPeer was initially found neither guilty in joint criminal enterprise liability nor aiding criminal liability by Taiwan Shilin District Court in 2005. The case was appealed to the Taiwan Superior Court. It was later twice remanded to the Intellectual Property Court by the Supreme Court. In the end, Intellectual Property Court found the defendant was guilty in joint enterprise criminal liability in 2011. See Taiwan Shilin District Court, Year 2003, Su-Zi No. 728, Criminal Case (臺灣士林地方法院 92 年度訴字第 728 號刑事判決);Taiwan Superior Court, Year 2005, Shang-Su-Zi No.3195, Criminal Case (臺灣高等法院 94 年度上訴字第 3195 號刑事判決) ; Supreme Court, Year 2009, Tai-Shang-Zi No.113, Criminal Case (最高法院 98 年度台上字第 1132 號刑事判決);Intellectual Property Court, Year 2009, Xing-Zhi-Shang-Geng-Zi...
Administrative Decision

Intellectual Property Court, Year 2009, Xing-Zhi-Shang-Geng-Zi No. 48, Criminal Case (智慧財產法院 98 年度刑智上更字第 48 號刑事判決)

Prior to the enactment of inducement liability of copyright infringement in 2007, a peer-to-peer file sharing service called Kuro was found guilty in joint criminal enterprise liability by Taiwan Taipei District Court in 2005, which was the first criminal ruling against peer-to-peer file sharing services in the world. The case was appealed to the Taiwan Superior Court. It was later remanded to the Intellectual Property Court by the Supreme Court. The Intellectual Property Court found the defendant was guilty in joint criminal enterprise liability. See Taiwan Taipei District Court, Year 2003, Su-Zi No. 2146, Criminal Case (臺灣臺北地方法院 92 年度訴字第 2146 號刑事判決); Taiwan Superior Court, Year 2005, Zhu-Shang-Su-Zi No.5, Criminal Case (臺灣高等法院 94 年度矚上訴字第 5 號刑事判決); Supreme Court, Year 2009, Tai-Shang-Zi No.6117, Criminal Case (最高法院 98...
Legislation

Telecommunications Business Act, last amended Act No. 12761, October 15, 2014 (English Version)

English Version ( 1 ) According to Article 27(2)6 , a value-added telecommunications service provider of special type (the special types of OSPs such as P2P or web-hard service providers under Article 104 of the Copyright Act) which has been imposed the fine under Article 142(1) of the Copyright Act for more than three times may have its registration cancelled or its business suspended. “Value-added telecommunication service providers” is the term of art that describes all online hosts of applications and contents. ( 2 ) The amendment by Act no. 12761 on 15 October 2014, which came into force on April 16, 2015, newly included Article 22-3 which compels those special types OSPs to adopt technical measures prescribed by Presidential Decree to prevent circulation of obscene materials. Those OSPs in violation of Article 22...
Court Decision

Supreme Court Decision 2009Da4343, March 11, 2010

( 1 ) This decision applied the rule of 2008Da53812 (see below), the leading case on intermediary liability, on copyright infringement . The defendant was Yahoo Korea and the plaintiff sued Yahoo Korea for copyright infringement. The issue here was whether Yahoo Korea was liable for copyright infringing materials posted by subscribers on its website. ( 2 ) The Supreme Court held in favor of the defendant. According to the Supreme Court, OSPs cannot be held liable for merely allowing subscribers to post copyright infringing materials and enabling the materials to be searched on their portals. OSPs are only liable for aiding the infringement for not taking necessary measures under three conditions: ( 1 ) illegality of the copyright infringing material is clear; ( 2 ) the OSP either received a notice from the right holder...
Court Decision

Supreme Court Decision 2005Do872, December 14, 2007

( 1 ) This case is significant in that the Supreme Court found p2p file sharing software “Soribada” – Korean Napster - liable for copyright infringement by aiding its subscribers’ crime. ( 2 ) Following its reasoning in 2005Da11626 (see below), the Supreme Court did not differentiate civil liability and criminal liability. ( 3 ) The Supreme Court held that all direct and indirect acts that facilitate copyright infringement are considered aiding. Moreover, it is sufficent that the aider was reckless and it is not required that the aider was specifically conscious of the date or place of infringement, the object copied, or the identity of the principal.
Court Decision

Supreme Court Decision 2005Da11626, January 25, 2007 (English Version)

( English Version ) ( 1 ) This decision affirmed the decision of appellate court (2003Na21140) which held an intermediary – “Soribada” - liable for aiding copyright infringement for the first time. In Korea, aiding and abetting have different meanings in civil liability and criminal liability. Article 760 of the Civil Act on joint tort treats aider and abettor the same. On the contrary, punishment for aiding a crime and punishment for abetting a crime are different: the latter is punished the same with the principal (Article 31(1) of the Criminal Act), while the former gets its punishment reduced (Article 32 of the Criminal Act). ( 2 ) The Court stated that acts assisting infringement of the right to reproduce refers to all direct and indirect acts that facilitate the violation of the right held by other parties, and...
Court Decision

Seoul High Court Decision 2010Na35260, October 13, 2010

( 1 ) In February 2009, Woo Jong-Hyun (surname Woo) recorded his 5-year old daughter casually singing part of the popular singer Sondambi’s major hit I am Crazy unaccompanied and imitating the singer’s gestures and posted the video clip on his blog opened at the country’s major portal Naver, operated by NHN. June of that year, the Korean Music Copyright Association (KOMCA) issued about 16,000 takedown notices to Naver, including the one on Woo’s video clip. Naver immediately took down the video clip and rejected Woo’s restoration notice and the video clip has been down ever since. ( 2 ) Woo filed suit against KOMCA and NHN for damages under Article 103(6) of the Copyright Act: (6) Any person who demands, without legitimate authority, the suspension or resumption of the reproduction or transmission of relevant works,...
Legislation

Tort Ordinance (New Version) (Unofficial English Version)

Stipulation of the Tort Ordinance and common law tort law could be made use in the context of intermediary liability with respect to copyright issues because Section 52 of the Copyright Act states that “Infringement of copyright … is a civil wrong and the provisions of the Ordinance on Torts (New Version) shall apply mutatis mutandis subject to the provisions of this Act”. Section 12 of the Tort Ordinance states that “for the purposes of this Ordinance, any person who joins or aids in, authorises, counsels, commands, procures or ratifies any act done or to be done, or any omission made or to be made, by any other person will be liable for such act or omission.” This broad definition could be used to establish intermediary liability in the context of copyright infringement. In fact, reference use of intermediary...
Court Decision

Supreme Court, Civil Appeal 5977/07, the Hebrew University of Jerusalem vs. Schocken Publishing House(2011)

The decision in Hebrew University v. Schocken is considered the leading authority on Contributory Liability in the context of copyright law. In this case, the Supreme Court introduced Contributory Liability doctrine into copyright law. This case involved copying of textbooks. The Israeli Labour Party subsidized a student club called “Teh Ofek” (Horizon Cell) at the Mt. Scopus Campus of Hebrew University. As an incentive to get students involved, they provided cheap versions of a course textbook entitled “Traditional Japan,” the publisher sued the student club, the Labour Party and the University. The Supreme Court has recognized that in certain specific circumstances courts can use the doctrine of Contributory Liability from Tort law to assess whether the action of an intermediary is infringement of copyright. The...
Paper/Research

Jei Wang, Development of Hosting ISPs’ Secondary Liability for Primary Copyright Infringement in China - As Compared to the U.S. and German Routes, 46(3) IIC 275 (2015)

This article takes a comparative approach to studying the development of hosting ISPs’ secondary liability in China, namely by referring to relevant rules in the US and Germany as examples. In particular, this article compares how the courts interpret the main imputed factors in these three jurisdictions such as monitoring responsibility, knowledge of infringement, measures against repeating infringement, benefit from infringement, and inducement. Through the aforesaid comparison, this article notes that the development of hosting ISPs’ secondary liability in China has been deeply affected by the relevant rules in the US and Germany, but it is also marked with its own characteristics such as requiring the hosting ISP to exert a higher level of duty of care on hot-play films and television dramas, and famous works....
Policy Document

Malaysia International Intellectual Property Alliance (IIPA) 2013 Special 301 Report on Copyright Protection and Enforcement, February 8, 2013

The report argues that (1) Malaysia’s safe harbor provisions can be improved if: (i) it will be made clear that the duties to cooperate are triggered by a compliant notice or if the service provider knows or is aware of facts and circumstances from which the infringement is apparent; (ii) injunctive or other equitable relief can be used in case of uncooperative service providers; (iii)service providers have in place a fair and effective termination policy for repeat infringers and that those that fail to inform their customers and implement such a policy would not be eligible for the safe harbors. (2) The IIPA also criticized the “48-hour” rule for takedowns, which they deem “too slow for “pre-release” materials (movies, music, games, software, or published materials not yet available in Malaysia).” Since automated...
Paper/Research

Nor Saadah Abd Rahman, Copyright in the Internet with reference to Malaysia, Durham theses, Durham University (2004)

This thesis examines selected legal issues of copyright law in respect of the internet. The thesis focuses on Malaysian and UK Copyright law concerning; accessing web pages; linking; framing and caching. Since the internet is in use globally, law at an international, regional and national level have been examined in order to find solutions to these selective issues. At the regional level, European Union law is analysed. The Information Society Directive covers two of the selected issues (accessing web pages and caching). However there are still gaps in the Information Society Directive regarding the two other issues of framing and linking. In UK Copyright law, since the UK has implemented the Information Society Directive, a new section has been added to the Amendment Act, which covers accessing web pages and caching,...

Central America

Legislation

Copyright Law, Decree No. 33-89, May 2003

Copyright law would be the legal basis for decisions regarding any case of Internet Service Providers’ (ISP) liability in Guatemala involving infringinment of moral or economic rights belonging to an author. In case of infringement, the rightholder may certainly hold liable the direct infringer uploading the protected materials, but it might also, according to Article 1645 of the Civil Code, establish judicial proceedings against the ISPs if the author can prove negligence or carelessness from their part.

Europe

Court Decision

Belgian ISPs agree to block 450 ‘pirate’ domains

A Belgian solution to the problem of counterfeiting
Thee three main Belgian ISPs Proximus, Telenet and VOO are joining with right holders and are now blocking 33 websites and 450 domains on copyright grounds. People who are now trying to access these sites will see an ‘online fair play’ message from the Belgian Entertainment Association (BEA). After a year-long legal dispute, the film and music industry and the main internet service providers have decided, on the basis of a joint request, to go to the Brussels French Commercial Court. This case was held in March 2018. The European legislator has set up a mechanism that allows the national judge to issue injunctions to order suppliers to block access to the websites. The BEA and Internet service providers have agreed on a list of 33 websites and 450 domain names that they believe are guilty of facilitating illegal...
Proposed Law

Copyright and Other Intellectual Property Law Provisions Bill 2018

On 13th, March, 2018, the Minister for Business, Enterprise and Innovation, Ms. Heather Humphreys T.D., and the Minister of State for Training, Skills, Innovation, Research and Development, Mr. John Halligan T.D. welcomed the publication of the Copyright and Other Intellectual Property Law Provisions Bill 2018. The Bill is in response to a Report entitled “Modernising Copyright” published in October 2013, which was compiled by an independent Copyright Review Committee appointed in 2011.
Court Decision

FAPL v BT & others [2017] EWHC 480 (Ch)

This is a unique s.97A of the CDPA 1988 blocking injunction case, aimed at tackling copyright-infringing, live streaming of Premier League matches. The successfully obtained order (largely agreed between the parties) obliges the defendant Internet Service Providers to block the IP addresses of streaming servers during Premier League matches. A list of those servers was provided at the time the order was given, and the order specifies that this list is to be updated by the claimants every week during the Premier League season. It is of note that the blockade is to be in effect only during the live transmissions. In the rights balancing exercise, the Court found that the copyright of claimants outweighs any possible risks to the defendant ISPs' freedom to conduct a business and the users's freedom to impart or receive...
Court Decision

Juzgado Mercantil No 2 of La Coruña, Mediaproducción v Roja Directa, 247/2016,

(ES:JMC:2016:4325)
Holding the owner of the website RojaDirecta liable of copyright infringement; the site would offer links to streams of sports events; the court found the site was engaging in an unauthorized communication to the public, taking into account the criteria set by the CJEU in Svensson and GS Media ; exemptions from liability did not apply as the site was considered non neutral, and hence a publisher rather than a mere intermediary. More info, in Spanish, can be found here .
Court Decision

Supreme Court, Criminal Chamber, Youkioske.com, 920/2016

Holding two webmasters of a website liable for criminal copyright infringement; the website would offer links to access, via streaming, scanned full versions of newspapers, magazines and books; the files were hosted somewhere else; the court found that the site was engaging in a communication to the public according to the criteria set out by the CJEU in Svensson ; there was “new public” as the website allowed access to the contents of the print edition without the need of buying it; the Supreme Court upheld the first instance ruling handed down by the Audiencia Nacional.
Court Decision

Tribunale di Roma [Court of Rome], Civil, TMFT Enterprises LLC- Break Media v. Reti Televisive Italiane S.p.A. (RTI)

( 1 ) The Court of Rome found TMFT Enterprises LLC- Break Media ("Break Media") liable for copyright infringement for the unauthorized streaming of audiovisual content to which Reti Televisive Italiane S.p.A. ("RTI") owned the copyright. ( 2 ) The Court supported its decision basically on two arguments: Identification of the activity of Break Media as "active hosting" and not just "passive hosting". According to the Court, Break Media is not a simple host of media content but a sophisticated content-provider. Indeed, the activity of Break Media is not limited to the activation of technical procedures for enabling the content to be loaded to the platform ("passive hosting"), but requires of a complex and sophisticated organization of advertising exploitation of the content loaded to the platform which is selected,...
Court Decision

Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, GEMA, I ZR 3/14

( 1 ) The Court decided on actions against internet service providers over access to websites linking to copyright infringing material. The collecting rights society GEMA sought to enjoin Deutsche Telekom from providing access to the website "3dl.am," hosting links to files in file repositories such as Netload, Uploaded or Rapidshare, which contain material for which GEMA members own the copyright. ( 2 ) According to Article 8(3) of the InfoSoc Directive , the Court noted that access providers could be enjoined from providing access to sites hosting or linking to copyright infringing material if they knowingly provided the means to allow the infringement, provided they failed to take reasonable care. Additionally, blocking injunctions were not only permissible when the blocked domain contained exclusively infringing...
Legislation

Law No. 1/2015​, to amend the Spanish Criminal Code, March 30, 2015 (entering into force on July 1, 2015)

( 1 ) widening the definition of copyright criminal offense so as to include any act of exploitation, and no longer limited to acts of reproduction, plagiarism, distribution and communication to the public; ( 2 ) when the conditions are met, the information service providers’ active facilitation to access or locate copyrighted works that are made unlawfully available on the internet will be considered a criminal offense (Article 151-152 modifing Article 270-271 of the Criminal Code).
Legislation

Copyright Act 404/1961, July 8, 1961

As in force from June 1, 2015
Section 60a empowers a court to order an intermediary of those users to disclose information of subscribers who make copyrighted content available to the public "to a significant extent". Section 60b governs a suit to forbid continuing the infringement. Section 60c provides a possibility for an "injunction to discontinue" for intermediaries, essentially providing for website blocking or user disconnection orders in case the operator can be identified . In case of a preliminary injunction, the claimant is required to sue the infringer as per Section 60b. Section 60d provides for an interlocutory injunctions in situations like Section 60c. Section 60e provides for blocking injunctions in cases where the operator cannot be identified, for at most one year at at time. Section 60f provides inter alia that in a typical case,...
Court Decision

Vilnius Regional Court, Civil Case No. 2A-1049-577/2015, January 6, 2015; Civil Case No. 2A-1407-392/2015

( 1 ) In both cases, the claimant asked the court to find the communication service providers (cable network companies) liable for copyright infringement committed by its users, who downloaded infringing software via peer to peer networks. ( 2 ) The court found that the respondent is an electronic communication service provider, who only transmits the electronic communication signals, does not control the content of data and therefore, enjoys an exemption from liability established by the Law on Information Society Services. The claim against the service provider was dismissed.
Court Decision

Twentieth Century Fox Film Corp. v Sky UK Ltd [2015] EWHC 1082 (Ch)

The claimants applied for a “Newzbin 2” blocking order against websites which made available and facilitated the use of the so called Popcorn Time applications (used for BitTorrent-based, illegal streaming of copyrighted content). The order was granted, with the websites’ owners found jointly liable for the infringements and the Popcorn Time application being characterised as having no legitimate purpose.
Court Decision

High Court, Sony Music & Ors v UPC Communications [2015] IECH 317

( 1 ) The plaintiffs, Sony, Universal and Warner Music, sought an injunction to impose upon UPC Communications, the second largest Irish Internet access provider, an obligation to implement a "Graduated Response Strategy" (GRS) against UPC's subscribers allegedly infringing plaintiffs' copyrights online. The injunction sought was pursuant to s.40 (5A) of the Copyright and Related Rights Act, 2000 (as amended) (see above) requiring that the defendant take reasonable steps to prevent its subscribers from using the defendant’s internet service for the purpose of breaching the plaintiffs’ copyright in the plaintiffs’ sound recordings ( 2 ) According to the court, the essential elements of a GRS are that "( i ) the owners of the copyright send to the ISP a list of infringements with reference to specific internet protocol...
Court Decision

Corte d'Appello di Milano [Court of Appeal of Milan], Civil, Reti Televisive Italiane S.p.A. (RTI) v. Yahoo! Italia S.r.l. (Yahoo!) et al., 3821/2011

The Court of Appeal reversed an earlier decision (see below). The appelate decision clarified that RTI had the obligation to indicate in a "detailed, precise and specific manner" the videos that Yahoo! had to remove. Additionally, in view of the Court of Appeal, the court of first instance did not have the power to "impose to a hosting provider general orders or, even worse, general monitoring obligations, which are forbidden by Directive 2000/31/EC ." Intermediary liability may arise only if the hosting provider does not act promptly upon a "detailed, precise and specific" notice. Actually, RTI never sent this notice to Yahoo!, therefore the appelate court found in favor of Yahoo! and rejected RTI's claims. See also CIS Blog
Legislation

Deregulation Act 2015 c. 20

Section 56 of this Act repeals sections 17 and 18 of the Digital Economy Act 2010 (which warranted the introduction of specific website blocking injunctions, see below).
Court Decision

Protodikeio Athinon [Athens Court of First Instance], Decision 13478/2014

( 1 ) This recent high-profile case was a joinder of multiple applications for injunctions by Greek collecting societies against Greek ISPs in order to block access to websites containing potentially infringing content and enabling downloading of illegal files via p2p services. ( 2 ) The court decided it would not allow the injunctions, determining that the intermediary Greek ISPs could not be ordered to block access to the above-mentioned websites. ( 3 ) The court also highlighted the need for safeguarding users’ rights of participating in the information society and confidentiality of communications (as outlined in the Greek Constitution articles 5A, 9A, and 19.) and deeming that such a measure was against the principles of proportionality and net neutrality, as the websites and services in question can also be used...
Court Decision

La Societe Civile des Producteurs Phonographiques (SCPP) v. Orange, Free, SFR, and Bouygues Telecom, Tribunal de Grand Instance (TGI) Paris

The High Court of Paris ordered ISPs to “implement all necessary measures to prevent access from the French territory to the music file-sharing site the Pirate Bay and its redirection sites and mirror sites.” The French Court acted upon a claim of the Société Civile des Producteurs Phonographiques Civil Society of Phonogram Producers (SCPP). he blocking order was issued on the basis of Article L336-2 of the French Code of Intellectual Property . The article implements Article 8(3) of the EU Information Society Directive by providing that “in the presence of an infringement of a copyright or related right caused by the content of a public online communication service, the high court . . . may order at the request of rights holders . . . all appropriate measures to prevent or stop such infringement of a copyright or...
Court Decision

TF1 v. DailyMotion, Court of Appeals of Paris

The Paris Court of Appeals handed down a decision awarding €1.3M in damages to the French commercial TV broadcaster TF1 against DailyMotion, which failed its duty of promptly removing infringing materials from its platform. However, the Court stated that DailyMotion enjoys limitation of liability as a hosting provider and is not required to proactively monitor users' infringing activities. See also CIS blog post
Court Decision

Omnibill (PTY) Ltd v Egpsxxx Ltd (In Liquidation) [2014] EWHC 3762 (IPEC)

An owner of a website advertising escort services in South Africa found out that the UK copyright-protected pictures from his website were placed on his competitor’s website. The latter party was found to have infringed the copyright in pictures, as it was held that his website was targeted at the UK audience. The factors leading to this finding included the website’s language (English), the traffic data (10% to 25% visitors came from UK) and the website’s structure (composed of national sub-domains, connected to each other). The works were found to be communicated to the UK public.
Legislation

Federal Law No. 364-FZ ("Anti-Piracy Law")

Amending Federal Law “On Information, Information Technologies, and Data Protection” and Civil Procedural Code of the Russian Federation
( 1 ) The law specified and extended the application of judicial and administrative enforcement mechanisms, earlier introduced by Federal Law No.187-FZ , from movies to all copyright objects, except photographic works and works obtained by processes similar to photography. ( 2 ) The law introduced a procedure for “perpetual ban” in relation to sites involved in “repeated” IP infringements, with no right of restatement. ( 3 ) The law also introduced a comprehensive notice and take down process that a right holder may, but is not required to, follow before commencing court proceedings. Site owner can elect not to remove infringing content, but in this case must notify the right holder and present respective objections.
Court Decision

Audiencia Provincial [Court of Appeals] of Castellón, Section 1, Criminal, Bajatetodo.com, 414/2014 (ES:APCS:2014:1098)

( 1 ) The Criminal Court of Appeal of Castellón upheld a previous decision charging the webmaster of the website Bajatetodo.com with a eighteen-month prison term under Article 270 of the Spanish Criminal Code. The website used to provide links to a miscellaneous array of infringing materials available online. ( 2 ) The Court of Appeal applied the language of the new copyright reform (see above) by stressing that the webmaster went well beyond a mere passive neutral intermediary role by selecting, ordering and indexing the online resources to access the infringing materials. For this reason, the webmaster could not benefit of the linking safe harbour, specifically provided by the Spanish implementation of the eCommerce Directive. ( 3 ) Additionally, the Court of Appeal of Castellón made specific reference to the...
Legislation

Royal Legislative Decree No. 1/1996, enacting the consolidated text of the Copyright Act, April 12, 1996 (as amended by the Law No. 21/2014, November 4, 2014)

( 1 ) implementing the InfoSoc Directive (2001/29) mandatory exception for temporary acts of reproduction which are transient or incidental, have no independent economic significance, and are an integral and essential part of a technological process whose sole purpose is to enable (a) a transmission in a network among third parties by an intermediary, or (b) a lawful use (art. 31.1); ( 2 ) providing that copyright owners may ask for injunctions, where appropriate, against an intermediary whose services are resorted to by a third party to infringe copyright, even where the intermediary’s activity is not infringing in itself (arts. 138, 139.1.h, 141.6); ( 3 ) creating an administrative body -- the Second Section of the Copyright Commission (CPI) -- which orders injunctions against information society services who...
Court Decision

1967 v B Sky B [2014] EWHC 3444 (Ch)

Another “Newzbin 2” injunction case – an application was granted against 21 torrent websites. It is worth to add that the CJEU case C-466/12 Svensson, and its impact on the notion of communication to the public were distinguished; however, it was stated that the European court’s decision did not change the legal steps required to obtain the “Newzbin 2” injunctions in the UK.
Self-Regulation/Voluntary Agreement/Code of Conduct

Creative Content UK

A programme based on the “notice & notice” variant of the graduated response approach. UK ISPs have agreed to send educational notices to P2P filesharers who are found by the copyright holders to share the latters’ content online. See also UK Gov Press Release
Court Decision

Tribunale di Roma [Tribunal of Rome], Criminal, Operation EyeMoon

( 1 ) The Tribunal of Rome ordered Internet Service Providers to block access in Italy to the ip addresses of 24 websites hosting copyrighted content without the rightsholders’ consent. ( 2 ) Acting upon a claim of a small Italian independent distributor, the Italian authorities started a large-scale anti-piracy operation, labelled “Operation EyeMoon,” that lead to the injunction issued by the Roman court. ( 3 ) The blocking order includes well known illegal movie streaming websites, such as cineblog01.net, cineblog01.tv, ddlstorage.com, divxstage.eu, easybytez.com, filminstreaming.eu, filmstream.info, firedrive.com, movshare.sx, nowdownload.ag, nowdownload.sx, nowvideo.sx, piratestreaming.net, primeshare.tv, putlocker.com, rapidvideo.tv, sockshare.com, uploadable.ch, uploadinc.com, video.tt, videopremium.me, youwatch...
Court Decision

Tribunale Regionale Amministrativo (TAR) del Lazio [Lazio Regional Administrative Tribunal], Administrative, ANSO, FEMI and Open Media Coalition v. Autorità per le Garanzie nelle Comunicazioni (AGCOM), 2184/2014

( 1 ) The associations for the defense of freedom of information as well as those representing web-tv, micro web-tv, micromedia hyperlocal, blogs and video blogs, information portals, aggregators and video companies active in the online press are entitled to challenge AGCOM Regulations regarding Online Copyright Enforcement (AGCOM Regulation). ( 2 ) The AGCOM Regulation does not primarily enforce copyright but any failure to comply with an order of the Authority. Therefore, this order cannot be considered illegitimate for ( a ) AGCOM's incompetence to introduce a para-judicial procedure to enforce copyright or ( b ) inconsistency between this procedure and the rules of law which entrust to the ordinary courts the enforcement of copyright, or even, for ( c ) breach of the principle of the judge previously ascertained by...
Court Decision

Tribunale di Torino [Tribunal of Turin], Civil, IP Specialized Section, Delta TV Programs S.rl. v. YouTube et al

Reversing en banc a previous judgment of the same Tribunal of May 5, 2014 (see below). This time, the Court accepted Delta TV’s request for interim injunction against Google and YouTube for copyright infringement of certain South American soap operas that users had uploaded to YouTube. In this case, Google complied with its notice and take down policy, and the videos were removed as soon as the specific URLs were provided by Delta TV. Nevertheless, the Court agreed with Delta TV’s claims, and ordered Google and YouTube to remove the infringing videos and to prevent further uploads of the same content through the use of its Content ID software (YouTube’s system for automatic detection of uploaded videos that infringe copyright) using as a reference the URLs provided by Delta TV. The Court stressed that these proactive...
Court Decision

Tribunale di Torino [Tribunal of Turin], Civil, IP Specialized Section, Delta TV Programs S.rl. v. YouTube et al

Rejecting Delta TV’s request for interim injunction against YouTube for copyright infringement on certain South American soap operas which had been uploaded by YouTube users. Delta TV sued Google and YouTube and filed for an interim injunction asking the Court to order Google to remove the infringing videos, prohibiting further violations and imposing a penalty of EUR 1,000 per day for each violation of the Court’s order. However, the Court rejected the request on the basis that ( i ) there is no obligation on the part of Google and YouTube, as hosting providers, to assess the actual ownership of the copyrights in videos uploaded by individual users, ( ii ) the only liability hypothetically attributable to Google and YouTube relates to cases where they are specifically informed of the unlawfulness of the uploaded...
Court Decision

Corte di Cassazione [Supreme Court], Third Criminal Section, Google-Vividown, 5107/14

Upholding the Milan Court of Appeal’s judgment and concluding a long dispute between the no-profit association Vividown and Google. ( 1 ) Vividown brought a lawsuit against Google because it did not promptly remove a video from YouTube. The video portrayed a minor with the Down syndrome bullied by his classmates. ( 2 ) For the Privacy Code article 167 “Any person who, with a view to gain for himself or another or with intent to cause harm to another, processes personal data (unlawfully) … shall be punished, if harm is caused, by imprisonment for between six and eighteen months or, if the offence consists in data communication or dissemination, by imprisonment for between six and twenty-four months, unless the offence is more serious”. ( 3 ) The first trial found Google guilty for “not preventing the crime”; the Court’s...
Self-Regulation/Voluntary Agreement/Code of Conduct

Coalition Contract [Expansion of Hosting Provider Liability]

After the federal elections in Germany in September 2013, the leaders of the two coalition parties have concluded a non-binding coalition agreement that includes expanded hosting provider liability for online copyright infringement. The agreement says one of the coalition’s aims is to combat mass infringements of copyright and therefore “internet service providers should take more responsibility.” The grand coalition plans to “improve enforcement in particular towards platforms whose business model is mainly based on the infringement of copyright.” To that end, the coalition would like to “ensure that such service providers no longer enjoy the general liability privilege as so-called hosting provider and in particular no longer receive advertising revenues.” However, it is unclear what precisely the grand coalition...
Legislation

AGCOM Regulations regarding Online Copyright Enforcement, 680/13/CONS

Vesting the Italian Communication Authority (AGCOM) with new administrative copyright enforcement powers; copyright enforcement would be done through administrative procedures which would not target direct infringers but rather Internet Service Providers (ISPs). For a summary in English, see CIS blog post 1 ; see also CIS blog post 2 , 3
Institution (Description)

Regulatory Entity: Communication Authority (AGCOM)

The AGCOM Regulations regarding Online Copyright Enforcement vested the Italian Communication Authority (AGCOM) with new administrative copyright enforcement powers; copyright enforcement would be done through administrative procedures which would not target direct infringers but rather Internet Service Providers (ISPs). For a summary in English, see CIS blog post 1 ; see also CIS blog posts 2 and 3 .
Court Decision

Gerechtshof Amsterdam [Court of Appeals Amsterdam], Civil law, GS Media v. Sanoma, ECLI:NL:GHAMS:2013:4019

The case is about leaked nude photographs of Dutch television-personality Britt Dekker that had yet to appear in Playboy magazine. An unknown person had stored the photographs online with Filefactory’s hosting service. Dutch entertainment website Geenstijl had posted a link to the file containing the photographs. The Court of Appeals of Amsterdam held that linking to copyright-protected material that is available on the web elsewhere is no different from a footnote referring to earlier published works. In principle, linking to copyright-protected works on the web does not communicate those works to the public and does not constitute a copyright infringement. This may be different if the works were untraceable and inaccessible to the public before the intervention. Although Geenstijl was not held liable for copyright...
Court Decision

Juzgado de lo penal [criminal court] # 4 of Castellón, Criminal, bajatetodo.com, 513/13

finding a website operator guilty of a criminal copyright infringement; the court found that a website providing links to infringing content hosted in P2P networks engaged in a communication to the public of those contents; the court held that the activity was not sheltered by the linking safe harbor of the Spanish law; the website operator was sentenced to 18 months of prison (which most likely will not be effective, as is usual in sentences below 2 years); the decision also dealt with the civil liability arising from the crime and thus damages were awarded to the right owners who brought the action.
Court Decision

Bundesgerichtshof [Federal Court of Justice of Germany], GEMA v. Rapidshare, I ZR 80/12

( 1 ) This case concerns a dispute between the German copyright collecting society, GEMA, and the Swiss-based file-hosting service, RapidShare. GEMA sued RapidShare in Germany, alleging that over 4,800 copyrighted music files were shared via RapidShare without consent from GEMA or the right holders. ( 2 ) According to the Court, although RapidShare’s business model is not primarily designed for violating rights, it nevertheless provides incentives to third parties to illegally share copyrighted content. It does so by ( i ) generating revenues through premium accounts which enhance massive data downloads, rather than on fees for storage space, as it is common for cloud computing; ( ii ) providing anonymous accounts to its user.; ( iii ) having an abuse rate of 5 to 6 percent - as acknowledged by Rapidshare - that...
Court Decision

Tribunale di Milano [Tribunal of Milan], Criminal, Lega Calcio

Ordering Internet Service Providers to block access within Italy to all present and future IP numbers associated with the Rojadirecta domain names, a website linking to football games streamed online without authorization. The criminal prosecution was started upon a claim of the Italian Soccer Association, since the unlawful streaming infringed its exclusive rights to broadcast the games. As in a similar decision of January 12, 2013, the order was based on Article 171, paragraph 1, letter a-bis of the Italian Copyright Law (see below).
Court Decision

Tribunale di Roma [Tribunal of Rome], Civil, IP Specialized Section, Reti Televisive Italiane v. Il Post, 15055/13

Ruling that by providing links to streaming services, an Italian news website had infringed on copyrights owned by a major Italian media company in relation to the broadcasting of football matches. Although a simple item of information indicating the availability of streaming football matches websites may constitute the legitimate exercise of right of freedom of the press, the systematic and repeated posting. Using links to matches about to start had the effect of offering to the public a tool for the immediate and easy identification of sites where they can see the event for free. The Court of Rome prohibited the provision, in any way, of information on the name and how to access the websites allowing the unlawful streaming of the Italian media company’s content.
Court Decision

Supreme Court, EMI v Data Protection Commissioner [2013] IESC 34

A settlement had been reached between record companies and a large ISP, Eircom, instituting a Graduated Response Protocol under which Eircom would issue copyright infringement notices to customers. The Data Protection Commissioner believed that this Protocol breached EU and Irish data protection law and issued an enforcement notice requiring Eircom to cease its operation of the Protocol. The Supreme Court found that the enforcement notice was invalid because of the absence of reasons.
Legislation

Federal Law No. 187-FZ.

Amending Legislative Acts of the Russian Federation Concerning the Questions of Protection of Intellectual Rights in Information and Telecommunication Networks
( 1 ) The law sought to strengthen the protection of motion pictures online and introduced amendments to the Civil Code, the Civil Procedure Code, the Arbitrazh (Commercial) Procedure Code, and the Federal Law No. 149-FZ of July 27, 2006 “On Information, Information Technologies and Protection of Information.” It also introduced a general framework for intermediary liability for IP infringements (see more on art. 1253.1 of the Civil Code above). ( 2 ) Under amended art. 26 of the Civil Procedural Code, the Moscow city court, as a court of first instance, has an exclusive jurisdiction to consider cases related to violation of IP rights to motion pictures on the Internet, and can issue preliminary injunctions at the request of a right holder before a legal suit is filed. ( 3 ) Roscomnadzor is mandated to enforce such...
Court Decision

High Court, EMI v UPC [2013] IEHC 274

Record companies successfully applied for an order against various ISPs blocking access to the Pirate Bay website, based on the amended s.40 of the Copyright and Related Rights Act 2000. Later in 2013, the record companies successfully applied to the High Court for Kickass Torrents to be blocked .
Court Decision

High Court, EMI v UPC [2013] IEHC 204

Record companies had instituted proceedings seeking an order against various ISPs blocking access to the Pirate Bay website. Digital Rights Ireland (DRI) applied to be added as an amicus curiae. The Court refused to add DRI to the case. Considering Irish cases on criteria for joining an amicus curiae, the court found that this case did not involve novel principles and DRI was not a neutral party.
Court Decision

Tribunale di Milano [Tribunal of Milan], Criminal, Reti Televisive Italiane

Ordering Internet Service Providers to block access to 10 websites streaming football games without authorization upon a claim of the main Italian private broadcaster (RTI-Mediaset), since the unlawful streaming infringed its exclusive rights to broadcast the games. The order was on Article 171-ter (2) a-bis of the Italian Copyright Law, which punishes with a criminal fine whomever makes available to the public 1a copyrighted work by inserting it into a computer system, without authorization, through connections of any type. In particular, the court specified that football games, per se, may not be considered as copyrighted works, while video recordings of the same, characterized by a specific technical and creative contribution, may be considered as such.
Court Decision

Tribunale di Milano [Tribunal of Milan], Criminal, Mondadori

At the request of Italy’s largest publishing company, Mondadori, the court ordered all Italian Internet Service Providers to block access within the Italian terriory to Avaxhome.ws, a popular website featuring links posted by users to online services hosting PDF copies of worldwide newspapers. The order was based not only on criminal copyright infringement, but also on the crime of handling stolen goods. This could imply that not only the website operators but also the website users might risk criminal consequences for posting links.
Court Decision

Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, Morpheus, I ZR 74/12

The Court ruled that parents are not liable under parental responsibility laws for damages caused by their children using file sharing devices, if parents duly fulfill their supervisory duties. The parents’ supervisory duties towards their children depend on the childrens’ stage of development, namely their age. Parents generally comply with their supervisory duties, if they point out the legal wrong of copy right infringements on the Internet. The instructions have to take into account the child’s age and capacity of discernment. It is sufficient to instruct a normally developed 13-year-old child that generally obeys rules set by her parents that file sharing is illegal and therefore forbidden. Parents are generally not obliged to implement any technical measures to prevent children from infringing. Furthermore,...
Court Decision

Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, Sommer unseres Lebens, I ZR 74/12, November 15, 2012

The Court ruled that whoever uses a Wi-Fi router and does not implement the safety standards against third party usage that are commonly accepted at the time the router is bought, is liable for interferences, if third parties abuse this internet access for copy right infringement. A user of a Wi-Fi router has to comply with commonly accepted safety standards at the time she starts using the router independently from the previous occurrence of infringing acts by third parties. The general burden of proof of the identity of the infringer is on the plaintiff. However, when the defendant alleges that she did not cause the infringement, she bears a duty to disclose the circumstances under which such infringement could occur (note that there is no general duty to disclose material facts/discovery in Germany).
Court Decision

Court of Appeal of Eastern Finland, Decision S 12/306

The Court held that, in case of infringiment committed through an open WLAN network, it was more likely that the infringment, which was carried out by making works available to the public with DirectConnect, was committed by the the Internet access subscriber, rather than by some unknown user through the open WLAN network.
Court Decision

Cour de Cassation, Syndicat National des Producteurs de Music (SNEP) v. Google France

Google is liable for suggesting in its auto-suggest tool, words such as “Torrent”, “Megaupload” or “Rapidshare” when users type in names of artists or bands in the Google search bar, because it makes it possible to infringe copyright and/or neighboring rights by directing Internet’s searches towards services that offer illegal downloading. Google must implement the measures requested (stop associating determined keywords with the terms used in search) regardless of the possibility to easily circumvent these measures: as soon as they are aimed at contributing to remedy the situation by making it more difficult to find illegal sites, the measures do not have to be perfect.
Court Decision

Bundesgerichtshof [Federal Court of Justice of Germany], Atari Europe v. Rapidshare, I ZR 18/11

In this case, RapidShare neglected to check whether certain files violating Atari's copyright over the computer game "Alone in the dark" were stored on its servers by other users. The court acknowledged that reviewing every file that is uploaded by a user on the server would render RapidShare file-hosting service’s business impossible. Nevertheless, RapidShare should have checked its servers for similar infringing material stored by other users. Therefore, the Court noted, a hosting provider is not only required to delete files containing copyrighted material as soon as it is notified of a violation by the right holder, but must also take steps to prevent similar infringements by other users in the future. See also Husovec
Court Decision

Gerechtshof Leeuwarden [Court of Appeals Leeuwarden], Civil law, Stokke v. Marktplaats, ECLI:NL:GHLEE:2012:BW6296

Online marketplace Marktplaats is covered by the hosting safe harbor provision in Article 6:196c(4) of the Dutch Civil Code with regard to copyright infringing advertisements. The Court of Appeals held that a service provider is neutral when it provides its service without prejudice to all its users. The fact that an intermediary acquires knowledge through a notification or through the monitoring of its website for unlawful and unwanted information does not imply that the intermediary loses its neutral position.
Court Decision

Protodikeio Athinon [Athens Court of First Instance], Decision 4658/2012

( 1 ) The court ordered a temporary injunction against Greek ISPs in order to block access to certain websites that were thought to illegally contain or distribute copyrighted content on a large scale. ( 2 ) The court took care to mention that forcing the ISPs to filter data in order to prevent copyright infringement, restricting communication technologies such as p2p file exchange methods, and blocking entire websites when only certain web pages contained infringing content was disproportionate and against the Greek Constitution and European law but decided to order the blocking of the websites in question on the more questionable grounds of equating hyper-linking towards copies of copyrighted works with hosting such copies (the blocked websites contained hyper-links towards files of copyrighted works hosted on known...
Court Decision

District Court of Ylivieska-Raahe, Decision in case L 11/3769

The Court held that the provider of an open WLAN network was not shown to infringe and had no duty to protect the WLAN from outsiders. Therefore, the internet subscriber was not liable for infringement by some unknown user using the WLAN network. The fact that, at the same time the infringing activitiy took place, there was a public theater presentation in the internet subscriber's backyard may have been a factor taken into consideration by the court to conclude that someone else may have been the infringer.
Court Decision

Supreme Court, Civil Chamber, megakini.com, 172/2012

dismissing a copyright infringement claim brought by a website owner against Google; the Court of Appeals held that while Google’s acts of reproducing and making available a cached copy of the website were not covered by the caching or the linking safe harbor, nor by the temporary reproductions exemption, some general limits apply to copyright owners’ claims, such as the doctrines of abuse of right and the ius usus innocui — the right of using someone else’s property in a way that does not harm its owner; the applicability of those limits to copyright can be inferred from art. 40 of the Spanish Copyright Act, which enacts the “three step test”; the Supreme Court affirmed the court of appeals’ ruling, deeming the plaintiff’s claim an abuse of his right.
Policy Document

AGUR 12, Federal Department of Justice and Police & Federal Institute of Intellectual Property

AGUR 12 is a working group created in 2012 by the Federal Councillor Simonetta Sommaruga, Head of the Swiss Federal Department of Justice and Police, and under the supervision of the Director General of the Swiss Federal Institute of Intellectual Property, Roland Grossenbacher. The working group is responsible for identifying the possibilities that exist for adapting copyright law to technical developments. The group recently issued its report and recommended , among others, the adoption of a takedown procedure (if possible through self-regulation) as well as of a system to block access via ISPs in serious copyright infringement cases (see link to proposals here ).
Legislation

Royal Decree No. 1889/2011, on the functions of the Copyright Commission

instituting an administrative body - the Second Section of the Copyright Commission - in charge of issuing orders against information society services hosting copyright infringing materials (Article 43, introducing Article 158. Intellectual Property Commission in the Intellectual Property Law, Royal Legislative Decree 1/1996 ).
Court Decision

Tribunale di Milano [Tribunal of Milan], Civil, Reti Televisive Italiane S.p.A. (RTI) v. Yahoo! Italia S.r.l. (Yahoo!) et al., 3821/11

The Court of Milan found Yahoo! liable for copyright infringement. Infringement supposedly occurred with the publication of fragments of television programs through the now deceased Yahoo! Video service. The Court stated that the hosting safe harbor of the E-Commerce Directive could not be applied where the service is not a mere passive hosting of users' data, but is instead an "active hosting".
Court Decision

Tribunale di Roma [Tribunal of Rome], Civil, IP Specialized Section, Reti Televisive Italiane v. Rojadirecta

Concluding that Rojadirecta “consciously and willfully” aided and abetted the infringement of the right to broadcasting sporting events because the links, which may in itself be legit, were integrated in a broader activity facilitating and contributing to the infringement of the exclusive rights of the rightholders. Rojadirecta had knowledge of the unlawfulness of its actions with the clear goal of commercially exploiting the broadcasted sporting events through the placement of advertisements.
Court Decision

Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 1981 (Ch)

The “Newzbin 2” case. Shortly after the decision in Twentieth Century Fox Film Corp v Newzbin Ltd 2010 (described below), the Usenet indexing service was reactivated as Newzbin2. Upon noticing the reinstatement of the convicted website, Fox and other copyright owners successfully applied for a blocking injunction against Newzbin2, based on section 97A of the CDPA 1988 (see above). The requested injunction was aimed at forcing BT (the largest ISP in UK) to prevent its subscribers from accessing the Newzbin2 website.
Court Decision

ITV Broadcasting Ltd v TV Catchup Ltd [2011] EWHC 1874 (Pat)

The defendant operated a website based on free, unauthorised live streaming of television programmes; including those protected by the claimant’s copyright. It was provisionally decided that the defendant’s service did infringe upon the right of communication to the public and the right to reproduction; however the court decided to refer a series of questions to the CJEU, which were covered in the case C-607/11 ITV Broadcasting Ltd v TV Catchup Ltd . The CJEU is currently considering a further reference made in the same proceedings.
Institution (Description)

Regulatory Entity: Second Section of the Copyright Commission

The Law No. 2/2011 amended the Spanish Copyright Act to create an administrative body – the Second Section of the Intellectual Property Commission – which orders injunctions against information society services who infringe on copyright. Its functioning was later amended by Law No. 21/2014 . The IP Commission targets particularly websites providing links to infringing works in a purposeful and massive way; it may also require payment, advertising, and access service providers to stop providing their services to the infringer (see above Spanish Copyright Act .
Court Decision

Andre Rau v. Google Images, TGI Paris

Google is eligible under hosting safe harbor and not liable for future posting of same images (no take down/ stay down obligation). Moreover, linking is not reproducing and indexation of pictures on Google image is necessary to freedom of expression, not infringing use of image.
Court Decision

District Court of Helsinki , fin-tv.com, R 11/3075

In this case, Section 18 of the Freedom of Expression Act (460/2003) was argued to be the basis for access providers to block access to a website allegedly distributing Finnish copyrighted films. The applicant was the police. The district court rejected the request on five different grounds, including that ( 1 ) the access provider is not an intermediary referred to in Section 18, ( 2 ) the measures are ineffective and ( 3 ) the request was not specific enough.
Legislation

Law No. 2/2011, on a Sustainable Economy

Law instituting an administrative body - the Second Section of the Copyright Commission - in charge of issuing orders against information society services hosting copyright infringing materials (Article 43, introducing Article 158. Intellectual Property Commission in the Intellectual Property Law, Royal Legislative Decree 1/1996 ).
Court Decision

Court of Appeal (Svea hovrätt) ‘The Pirate Bay case’ RH 2013:27 (Swedish only)

( 1 ) Importantly this case tested the scope of the protection afforded to intermediaries under the E-Commerce Directive as implemented into Swedish law. The Court concluded that, due to the nature of its operation, The Pirate Bay could not rely on the protection afforded to some intermediaries under the E-Commerce Directive. ( 2 ) The case, is also interesting as it considered whether a Swedish court could claim jurisdiction where part of the relevant conduct, in a copyright violation, had taken place abroad. It was clear that some of The Pirate Bay’s users (i.e. the ones committing the actual copyright infringements – the principal offense) were located outside Sweden at the time of committing the copyright infringements. The relevant law makes clear that an offense is regarded as committed where the criminal act...
Court Decision

Rechtbank Amsterdam [District Court Amsterdam], Civil law, Kim Holland Productions v. 123Video, ECLI:NL:RBAMS:2010:BP6880

This case deals with the liability of the operator of video hosting platform 123video.nl, which stored, converted and categorized videos uploaded by its users. The videos in question were of pornographic nature and were uploaded by users without authorization of the copyright-owner. The District Court of Amsterdam held that the operator communicated the uploaded videos to the public and therefore infringed on Kim Holland Production’s copyrights. The Court came to this conclusion because of the operator’s active, mainly automated, involvement in the uploaded content. The operator, for instance, had created a separate category for ‘xxx’ videos, and moved all videos of pornographic nature to this category. Uploaded videos were converted to Flash-video-format, and displayed within the framework of 123video.nl. Moreover,...
Court Decision

High Court, EMI v UPC [2010] IEHC 377

Record companies sought orders ( 1 ) restraining UPC, an ISP, from making available to the public copies of sound recordings which breach copyright and ( 2 ) requiring UPC to block access to the Pirate Bay site. The court found that s.40(4) of the Copyright and Related Rights Act 2000 only covered “removal” of infringing material and therefore an injunction could not be granted. Charleton J. also reconsidered his previous decision in EMI v Eircom 2009 IEHC 411 (see below), in which he granted an order requiring an ISP to block access to the Pirate Bay, and stated that his previous decision in that case had been incorrect. Following this case, s.40 of the 2000 Act was amended by Statutory Instrument in 2012 (see above).
Court Decision

Cour de Cassation, eBay Inc et al. v. LVMH, Parfums Christian Dior et al, May 3, 2012 (affirming C.A. Paris)

holding eBay liable for third parties’ sales on eBay because played an “active role” in providing assistance in the promotion and optimization of these offers. eBay was also held to have red flag knowledge of infringing activity because of (i) the multitude notices of infringement it received on sales concerning this type of products and (ii) its promotion and involvement in these sales.
Court Decision

Gerechtshof Amsterdam [Court of Appeals Amsterdam], Civil law, Shareconnector v. Brein, ECLI:NL:GHAMS:2010:BL7920

The website operator in question had created a website that listed, verified and categorized hash codes that could be used to download copyright protected works on the e-Donkey peer-to-peer file sharing network. These hash codes identified the content of a digital file and could be used to download files available on the peer-to-peer network through peer-to-peer file sharing software. The Court of Appeals considered that the operator did not have digital files at its disposal, nor did the operator play a role in the transmission of files. The Court held that the operator was not liable for copyright infringement as the operator did not communicate copyright-protected works to the public. However, the operator was held liable under tort law for systematically and structurally facilitating the use and presumed uploading...
Legislation

Digital Economy Act 2010 c. 24

The DEA 2010 introduced two key procedures aimed at reducing online piracy through the “graduated response” approach – procedures labelled as the “initial obligations” and the “obligations to limit Internet access”. While neither of those became operational through the Act, it is still worth to outline them here. ( 1 ) The first procedure starts with a copyright owner accessing one of the P2P filesharing networks, and attempting to find and download a file to which he owns the copyright. Once he succeeds, he is supposed to record the IP address of the user who made the copyrighted file available, and send it to this user's ISP in the form of a Copyright Infringement Report (CIR). By virtue of s. 3 of the Act, the ISP is then required to forward this CIR to the allegedly infringing user. Should a user receive more than...
Court Decision

Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch)

Known as the “Newzbin 1” case. The operators of a Usenet indexing website (which was found to have been used for the illegal exchange of copyrighted movies) were found to be liable for the infringing activities of their users, on the basis of joint tort liability, authorisation liability and communication to the public.
Court Decision

Cour de Cassation, Telecom Italia (formerly Tiscali Media) v. Companies Dargaud Lombard and Lucky Comics

holding Tiscali liable under a regime of regular liability for hosting on its portal a blog featuring unauthorized reproduction of copyrighted comics owned by Dargaud because its function was that of a co-publisher, “particularly when allowing its users to create their personal web pages through its website and encouraging third parties to place advertisement directly on user’s page in order to generate additional revenue”.
Court Decision

R. v Allan Ellis T20087573 (2010)

Middlesborough Crown Court
On the basis of the infringing activities occurring on his website, the operator of Oink’s Pink Palace (which was a BitTorrent-oriented music sharing website running a torrent tracker) was charged with conspiracy to defraud. The court found that the defendant operator acted dishonestly and refused to apply the E-Commerce Regulations’ “mere conduit” safe harbour (see above), stating that this provision is aimed at principally legitimate operations, and Oink’s Pink Palace doesn’t count as such. However, the defendant was ultimately acquitted by the jury.
Court Decision

R. v Rock and Overton (2010) T20087573

Gloucester Crown Court
The operator of a website known as TV Links (which facilitated copyright-infringing activities by hosting links to 3rd party streaming websites) was charged with conspiracy to defraud. The judge initially considered TV Links to lie outside of the E-Commerce Regulations’ “mere conduit” safe harbour (see above), since he saw the website’s operators as assisting their users in infringing activities, and recital 44 of the E-Commerce Directive states that “a service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of ‘mere conduit’ or ‘caching’ and as a result cannot benefit from the liability exemptions established for these activities.” However, the defendants were ultimately able to rely on the reg. 17, for the E-Commerce...
Legislation

The Law on Copyright and Related Rights, Official Gazette No. 104/2009

Article 48 states that any person shall have the right to make a temporary reproduction of a work of authorship without the author’s permission and without paying any remuneration, under the following conditions: reproduction is transient or incidental; reproduction is an integral and essential part of a technological process; purpose of reproduction is to enable a transmission of data in a network between two or more persons through an intermediary, or to enable a lawful use of a work of authorship; and reproduction does not have independent economic significance.
Court Decision

Corte di Cassazione [Supreme Court], Third Criminal Section, ThePirateBay, 49437/09

Endorsing a principle upon which the judiciary is entrusted with the power of ordering the intermediaries to provide a material aid to prevent further copyright infringement by blocking access to websites which are found guilty of the crime provided under Art 173-ter (2) a-bis). The court may order the preliminary seizure of the website through which the operator contributes to the criminal activity of disseminating copyrighted works on the Internet, without authorization. At the same time, the court may require that the ISPs block access to the site in order to debar the illegal dissemination of these works.
Court Decision

Rechtbank Utrecht [District Court Utrecht], Civil law, Brein v. Mininova, ECLI:NL:RBUTR:2009:BJ6008

This case dealt with the liability of a website operator that stored and made available torrent-files on his website. The District Court held that the storing of torrent-files is not a communication to the public and thus not a copyright infringement. The operator was held liable under tort law for structurally facilitating copyright infringements of its users. Because the operator of the torrent-website categorized the torrent-files, removed files that violated the website’s rules, gave advice on how to download files and incidentally uploaded files himself, the operator was not shielded from liability on the basis of the hosting safe harbor of Article 6:196c(4) of the Dutch Civil Code.
Court Decision

High Court, EMI v Eircom [2009] IEHC 411

Record companies had reached a settlement with a large ISP (Eircom) instituting a graduated response system. The court ordered, on application by the record companies, that Eircom should block access to the Pirate Bay website. The court based its decision on s.40(4) of the Copyright and Related Rights Act 2000 and the Information Society Directive 2001.
Legislation

Law Implementing Directive 2004/48/CE of 29 April 2004 Relating to the Enforcement of Intellectual Property Rights, as amended

providing that the President of the District Court ("Tribunal d'arrondissement") may issue an interim injunction, upon request of a person authorised to file an action for counterfeiting, against an intermediary whose services are used by a third party to infringe an intellectual property right designed to: prevent any imminent infringement to an intellectual property right; prohibit, on a temporary basis, the pursuit of the alleged infringements to an intellectual property right; subordinate the pursuit of the alleged infringements to the constitution of guarantees designed to ensure the indemnification of the requesting party; or order the seizure of the goods suspected to infringe an intellectual property right in order to prevent their introduction or their movement within the commercial channels (art 27)
Court Decision

Kontent I Pravo v. Masterhost

At the Supreme Arbitration Court of the Russian Federation.
In this case, Kontent I Pravo claimed that its rights to copyright objects, uploaded by third parties on the website that was hosted on servers provided by Masterhost, were violated. Masterhost argued that it only provided web hosting services and thus should not be liable for mere storage and transmission of the content. The Supreme Court ruled in favor of Masterhost reasoning that a provider should not be liable if it does not initiate the transmission or modify the content.
Court Decision

Audiencia Provincial [Court of Appeals] of Madrid, Section N. 2, Criminal, sharemula.com, 582/08

dismissing a criminal claim against the owner of a website that provides links to copyright infringing content; the court held that linking to content hosted somewhere else does not amount to a communication to the public of the content linked to, which is one of the elements necessary for the crime; in any event the accused party would be protected from criminal liability by the linking safe harbor.
Court Decision

District Court of Helsinki, Decision in case H 08/3008, June 23, 2008 and August 6, 2008

In these four cases, Section 60c of the Copyright Act was applied to disconnect DirectConnect p2p filesharing users. All the issues were settled quickly afterwards and later the request was withdrawn. For a critique of this approach in Finnish, see Pekka Savola, Internet-operaattori ja perusoikeudet in Tapani Lohi (ed), Oikeustiede–Jurisprudentia XLVI:2013 (Suomalainen Lakimiesyhdistys 2013), at 154–156.
Legislation

Legislative Decree Stb. 2007, 108, Law implementing Enforcement Directive (2004/48/EC); Article 26d Dutch Copyright Act

Article 26d of the Dutch Copyright Act contains a rule that allows courts to subject an intermediary to an injunction without the intermediary having to commit a tort. The article reads: “At the request of the author, the court can order intermediaries whose services are used by third-parties to infringe on copyright, to stop providing the services that are used to infringe.” It thus provides a basis for a particular type of injunction that is independent from any liability under tort law. According to the Explanatory Memorandum to this article, courts do have to take into account the degree in which the intermediary is involved in the infringement, and the proportionality between the court order’s aim and the loss or damage that is suffered by the intermediary as a consequence of the court order. If the copyright...
Court Decision

Corte di Cassazione [Supreme Court], Third Criminal Section, Coolstreaming and Calciolibero, 33945/06

( 1 ) Coolstreaming and Calciolibero facilitated access to soccer games, which were originally streamed by a Chinese broadcaster, by providing online information and links allowing viewers to connect directly to the Chinese servers. ( 2 ) Initially, the first two levels of judicial review had denied any form of infringement of others’ exclusive rights through this conduct. However, the Italian Corte di Cassazione reversed. ( 3 ) The Court construed indexing and linking as a contributory infringement because “undeniably, the defendants have aided and abetted, through the provision of a system of online guidance, the connection and synchronization to the sporting event; absent the defendants’ activities, the making available to the public of the protected works would not have occurred or would have occurred to a more...
Court Decision

Gerechtshof Arnhem [Court of Appeals Arnhem], Civil law, NVM v. Alletekoopstaandehuizen.NL, ECLI:NL:GHARN:2006:AY0089

This case is about the liability of an operator of a search engine that offered information on houses for sale. The search engine provided deep links into the websites of the brokers that houses for sale. The brokers argued that these deep links were communications to the public of their copyright-protected materials. The Court of Appeals rejected the claim for copyright infringement. While the brokers had implemented technical measures to prevent deep links from functioning, deep linking to their materials did not constitute a communication to the public of their works.
Legislation

Legislative Decree N. 140 Implementing Directive 2004/48/EC

implementing Article 11 of the Enforcement Directive in the following terms: ( 1 ) amending Article 156 of the Italian Copyright Law as follows: "who has reason to fear the violation of an economic right to which he is entitled by virtue of this law, or intends to prevent the continuation or repetition of the violation has already occurred both on the part of a direct infringer and an intermediary whose services are used for such a violation may take legal action to ensure that its legal right is established and the continuation of the infringement prohibited; uttering the injunction, the court may fix a sum due to any breach or non-observance subsequently recorded or for any delay in the execution of the measure" ( 2 ) amending Article 163(1) of the Italian Copyright Law as follows: "The holder of an economic right...
Court Decision

High Court, EMI v Eircom [2005] IEHC 233

Record companies requested Eircom, a large ISP, to provide identities of 17 customers who were allegedly infringing copyright. The High Court ordered that customers’ identities should be passed to the ISP, based on the UK tort case of Norwich Pharmacal v Customs & Excise 1973 UKHL 6. The court also relied on the Canadian case of BMG Canada v Doe 2004 FC 488 .
Legislation

Law No. 9380 on Copyright and Related Rights

The copyright law provides protection to rightholders for copyright infringment. The law targets primary infringers but secondary liability might be extended to third parties facilitating, aiding or abetting infringement.
Legislation

Legislative Decree N. 68 Implementing Directive 2001/29/EC

( 1 ) including a new Article 68bis in the Italian Copyright law stating that "except as provided by the E-Commerce Directive regarding liability of intermediaries, acts of temporary reproduction devoid of economic significance that are transient or incidental and an integral and essential part of a technological process, whose sole purpose is to enable a transmission in a network between third parties by an intermediary, or a lawful use of a work or other materials, are exempted from the reproduction right." ( 2 ) The Legislative Deecree did not include a specific implementation of Article 8(3) of the InfoSoc Directive .
Court Decision

Gerechtshof Amsterdam [Court of Appeals Amsterdam], Civil law, KaZaA v. Buma/Stemra, ECLI:NL:GHAMS:2002:AE0805

KaZaA offered peer-to-peer file sharing software that could be used to share all kinds of computer files, including music files. The KaZaA-network was a decentralized network that made use of so called “supernodes” that mediated communication between KaZaA-users. Collective rights management organization Buma/Stemra had argued that KaZaA’s software was used to infringe on copyrights on musical works. After failed negotiations on a licensing-deal, the District Court had ordered KaZaA to take measures to prevent the sharing of music files through KaZaA’s software. However, on appeal, the Court of Appeals of Amsterdam held that KaZaA was unable to take such measures. In an obiter dictum, the Court of Appeals noted that KaZaA, by offering its software, did not infringe on copyrights. If copyrights were infringed, then it...
Legislation

Copyright and Related Rights Act 2000

The main Act dealing with Copyright in Ireland. The Act has been amended a number of times and most of the amendments are available here . Of particular relevance to intermediaries, section 40(3) of the Act states that the provision of facilities for enabling the making available to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work. S.40(4) states that where a person who provides facilities referred to in s.40(3) is notified by the owner of the copyright that those facilities are being used to infringe the copyright and the person fails to remove the infringing material as soon as practicable thereafter that person shall also be liable for the infringement. An additional subsection was added to s. 40 in 2012 – see European Union (Copyright and...
Legislation

Law No. VIII-1185 on Copyright and Related Rights, as amended

The law implements the Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. ( 1 ) Article 78 of the law provides for the right of the rightholders to apply to court for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related rights. ( 2 ) Intermediaries are defined as electronic communication service providers who transmit information provided by third parties, provide access to communication networks and/or store information.
Court Decision

Supreme Court of Sweden (Högsta Domstolen) NJA 1996 s. 79 (Swedish only)

The owner of a BBS had dealt with at least 1000 copyright protected software products, amongst other things making the software products available to 300 paying subscribers. The matter related to whether the owner of a BBS could be liable for copyright infringements committed via the BBS. The Court concluded that there were serious gaps in the copyright protection afforded by the law.
Legislation

Copyright, Designs and Patents Act 1988 c. 48

The sizeable CDPA 1988 contains quite a few provisions related to intermediary liability. First of all, Sections 16 to 26 set out the definitions of various copyright infringing acts – those which might be of particular interest to online intermediaries are for example section 16(2) (dealing with the concept of authorisation of infringement) or section 20 (covering communication to the public). Secondly, Section 97A provides the basis for injunctions against providers of information society services. Finally, Section 107 covers the types of copyright-infringing conduct leading to criminal liability, quite a few of which could be potentially applied to online intermediaries. See more at Wikipedia
Court Decision

CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] UKHL 15

The decision in CBS v Amstrad is a leading authority on joint tort liability and authorisation liability of intermediaries facilitating the copyright-infringing actions of their users. In this case, a manufacturer and seller of hi-fi equipment (which allowed its users to copy music from one tape to another) was found to be not liable for its customers’ infringing use of said equipment. While this case comes from the “analogue era”, it continues to influence the decisions concerning online intermediaries; for example, it was the key authority considered in the first Newzbin case (see below).
Legislation

Código do Direito de Autor e dos Direitos Conexos (CDADC) [Code of Copyright and Related Rights], Law No. 45/85 of September 17, 1985, last amended by Law n.º 16/2008 [English Version]

This law covers the legal protection of intellectual creations in the literary sphere and artistic works. It transposed into Portuguese legislation EU Directive n.º 2004/28/EC of 29 April 2004 . For a detailed overview of the Copyright legal framework in Portugal see the chapter on Portugal by D. Moura Vicente in R.M. Hilty and S. Nérisson (eds), Balancing Copyright – A Survey of National Approaches, MPI Studies on Intellectual Property and Competition Law 18, Springer-Verlag Berlin Heidelberg 2012.
Legislation

Law N. 633 on the Protection of Copyright and Neighboring Rights [English Version]

Providing that ( 1 ) the acts of temporary reproduction devoid of economic significance which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable a transmission in a network between third parties by an intermediary, are exempted from the reproduction right (Art. 68-bis); ( 2 ) who has reason to fear the violation of an economic right to which he is entitled by virtue of this law, or intends to prevent the continuation or repetition of the violation has already occurred both on the part of a direct infringer and an intermediary whose services are used for such a violation may take legal action to ensure that its legal right is established and the continuation of the infringement prohibited; uttering the injunction, the court may fix a sum due to...
Legislation

Copyright Act, December 12, 1992

Section 817 of Copyright Act stipulates that in the case of the unlawful use of a work or an object of related rights, the author or holder of related rights may, among other, claim termination of the unlawful use of a work or an object of related rights and refrainment from further violation pursuant to Section 1055 of the Law of Obligations Act.
Legislation

Law of Obligations Act, July 1, 2002

The Law of Obligations Act (LOA) implements Article 8(3) of the Copyright Directive (Directive 2001/29/EC). If unlawful damage is caused by violation of copyright or related rights or violation of industrial property right, the person whose rights are violated may request that the violator and the person whose services a third party used for the purpose of violation of the right be refrained from further violation. ( Section 1055(3) LOA).
Proposed Law

The draft Copyright Act, July 19, 2014

The draft Copyright Act in its currently available version does not include a special provision referring to Section 1055 of Law of Obligations Act as stated above. The Law of Obligations Act will not, however, be amended in relevant respect. Therefore, in essence no changes are introduced. The estimated time of entry into force of the new Copyright Act is 1 January 2017.
Legislation

Copyright Act [Urheberrechtsgesetz] (UrhG), 1936

According to Section 81 (1a) of the Copyright Act (Urheberrechtsgesetz – UrhG), the intermediary can be sued for injunctive relief. However, if the safe harbors of the §§ 13 - 17 ECG apply, only after the right holder has informed him of the infringement in a cease and desist letter.
Court Decision

Oberster Gerichtshof (Supreme Court), 4 Ob 140/14p, October 21, 2014

( 1 ) The defendant maintains an Internet media website where users can upload content if they have an account and are logged in. The general terms and conditions of the website only allow content which does not infringe upon the rights of its authors. The claimant holds the rights to certain photographs which users uploaded to the defendant's website. The right holder sued the defendant for publishing the photographs without consent. ( 2 ) The Court ruled that a hosting provider can be sued for injunctive relief only after the claimant has informed him of the infringement. However, this prerequisite is not of formal, but of material character. Therefore, the claimant can bring action against the hosting provider but he will not succeed. The cease and desist letter has to contain specific information about the...
Court Decision

Oberster Gerichtshof, UPC Telekabel, 4 Ob 6/12d, May 11, 2012

( 1 ) UPC Telekabel appealed on a point of law to the Supreme Court a decision form a lower court ordering Telekable to block access to an illegal movie streaming website (see below). ( 2 ) In support of its appeal, UPC Telekabel submited inter alia that its services could not be considered to be used to infringe a copyright or related right within the meaning of Article 8(3) of Directive 2001/29 because it did not have any business relationship with the operators of the website at issue and it was not established that its own customers acted unlawfully. In any event, UPC Telekabel claims that the various blocking measures which may be introduced can all be technically circumvented and that some of them are excessively costly. ( 3 ) The Court decided to stay the proceedings and to refer questions to the European Court...
Court Decision

Oberster Gerichtshof, fpo.at I, 4 Ob 166/00s, September 13, 2000

( 1 ) The Austrian political party FPÖ operates the website www.fpoe.at . It alleged that the operator of the domain www.fpo.at infringed its name rights because his site contained content similar to the official website of the party and was designed to mislead the visitors of the site into thinking it is the official website of the party. ( 2 ) The Court denied the domain name authority’s obligation to monitor all assigned domain names for an infringement. It also ruled that the deletion of a domain name cannot be the subject of temporary injunction.
Court Decision

Oberlandesgericht Wien [Higher Regional Court, Vienna], UPC Telekabel, October 27, 2011

( 1 ) The Court, as an appeal court, partially reversed the order of the court of first instance (see below) in so far as it had wrongly specified the means that UPC Telekabel had to introduce in order to block the website at issue and thus execute the injunction. ( 2 ) In order to reach that conclusion, the Oberlandesgericht Wien first of all held that Article 81(1a) of the UrhG must be interpreted in the light of Article 8(3) of Directive 2001/29. ( 3 ) It then held that, by giving its customers access to content illegally placed online, UPC Telekabel had to be regarded as an intermediary whose services were used to infringe a right related to copyright, with the result that Constantin Film and Wega were entitled to request that an injunction be issued against UPC Telekabel. ( 4 ) However, as regards the protection...
Court Decision

Handelsgericht Wien [Commercial Court, Vienna], UPC Telekabel, May 13, 2011

( 1 ) Having established that a website was offering, without their agreement, either a download or ‘streaming’ of some of the films which they had produced, Constantin Film and Wega, two film production companies, referred the matter to the court responsible for hearing applications for interim measures to obtain, on the basis of Article 81(1a) of the UrhG, an order enjoining UPC Telekabel, an internet service provider, to block the access of its customers to the website at issue, inasmuch as that site makes available to the public, without their consent, cinematographic works over which they hold a right related to copyright. ( 2 ) The Court prohibited UPC Telekabel from providing its customers with access to the website at issue; that prohibition was to be carried out in particular by blocking that site’s domain...
Legislation

Law of June 30, 1994 on Copyright and Related Rights

including Article 87 implementing Article 8.2 of the Infosoc Directive of 2001 which states that “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” Note that this Law has been now codfied and inserted in the Book XI of the Belgian Commercial Law codification , which will enter into force on January, 1 2015
Self-Regulation/Voluntary Agreement/Code of Conduct

Belgian Internet Service Providers Association Code of Conduct

This is the Code of conduct set up by ISPA, the Belgian Association of Internet service providers. This Code of conduct is a example of self-regulation. It is mandatory for all the members of ISPA. It binds the members to a set of obligations, including the obligation for all the Belgian ISPs to collaborate adequately with the judicial authorities in their fight against online crimes, including copyright infringments, also through the Central Judicial Contact Point or eCops (see below).
Self-Regulation/Voluntary Agreement/Code of Conduct

Protocol of Cooperation between ISPs and Judicial Authorities

This April 1999 Protocol of cooperation between ISPA (the Belgian ISP Association), the police and judicial authorities was agreed upon to improve the cooperation between Belgian ISPs and judicial authorities. The Protocol put in place a Central Judicial Contact Point, which is now eCops, available at www.ecops.be ). eCops is an online complaint department to which Internet users, as well as the ISPs, can report crimes (including copyright infringments) committed through the Internet.
Court Decision

Supreme Court, Criminal, Belgacom SA/NV & Scarlet SA/NV (The Pirate Bay case II), P.13.0551.N/1, October 22, 2013

( 1 ) Reversing the decision of the Anvers Court of Appeal of February, 14 2013, ordering the blockage of all the websites redirecting to "thepiratebay.org," and sending the case back to the Brussels Court of Appeal. ( 2 ) The Belgian Supreme Court confirmed that the public prosecutor did not violate the law by ordering the ISPs to block all websites redirecting to thepiratebay.org. The Court confirmed that far-reaching blocking orders against all national Internet service providers are lawful. According to the Supreme Court, a magistrate is entitled to order, ( i ) in a single injunction, ( ii ) all national Internet service providers to ( iii ) block access to IP rights-infringing content ( iv ) which is hosted by a server, linked to a specific main domain name, ( v ) by employing all possible technical means at...
Court Decision

Supreme Court, Civil, H.L. v. Test-Achats SCRL, C.10.0153.F/1, June, 16 2011

The Belgian Supreme Court upheld an appelate decision holding that it is not possible for rightsholders or any other interested party to obtain from an hosting provider certain information to identify alleged copyright infringers on the basis of Article 21, § 2 of the Law of March 11, 2003 on certain services of the information society. This provision only allows judicial or administrative authorities to obtain these information (name of the client, his geographical situation, etc.) from a hosting provider in order to look for possible violation of the Law.
Court Decision

Supreme Court, Criminal, R.V., P.03.1427.N/1, February 3, 2004

The Supreme Court reviewed the application of the exemptions from liability established in the e-commerce Directive, as implemented by Article 20 of Law of March, 11 2003 related to certain aspects of services of the information society. The exemptions would cover over only cases where the activity of the information society service provider is ( i ) limited to the technical process of operating and giving access to a communication network ( ii ) over which information made available by third parties is transmitted or temporarily stored, ( iii ) for the sole purpose of making the transmission more efficient. ( iv ) This activity must be of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is...
Court Decision

Brussels Court of First Instance, Civil, Belgian State v. SABAM, No. 13/12839/A, March 13, 2015

( 1 ) SABAM, the largest Belgian collective management organisation (CMO), sought to obtain the payment of a copyright levy from Belgian Internet Service Providers (ISPs) for communicating to the public its repertoire. SABAM claimed that ISPs communicate to the public its repertoire without authorisation. SABAM demanded 3.4 percent of the ISPs' annual user subscription fees as a compensation for piracy committed by the ISPs' users. ( 2 ) As requested by law, SABAM informed the Economic Federal Public Service (SPF Economie), the administrative authority in charge of overseeing CMOs' activities, about its request to the ISPs. The SPF Economie issued a negative opinion regarding SABAM's proposed levy. After some inconclusive negotiations and an initial action started by SABAM against the ISPs but rejected on procedural...
Court Decision

Anvers Court of Appeal, Criminal, Belgacom SA/NV, Scarlet Belgium SA/NV, Edpnet SA/NV & Mobistar SA/NV (The Pirate Bay case II), No. K.379/13 / 2013/697, February, 14 2013

Upholding the request of issuing a permanent blocking order for the primary domain name “thepiratebay.org” and other domain names redirecting to this primary domain name. This criminal proceeding was initiated by a public prosecutor after additional domain names directing to ThePirateBay website, other than those blocked under the civil ruling of September 26, 2011, were registered and put back online. The Court of Appeal upheld the decision issued by the court of first instance. The district court decision upheld a preliminary injunction ordering that all the Belgian Internet operators and distributors must block access to the content hosted by servers linked to the primary domain name "thepiratebay.org" and their IP address 194.71.107.50 and 194.71.107.15, in particular "by employing all possible technical means at...
Court Decision

Anvers Court of Appeal, Civil, The Belgian Anti-piracy federation ASBL/VZW v. Telenet SA/NV & Belgacom SA/NV (“The Pirate Bay case I), No. 3399/Rep. 2011/9314, September, 26 2011

Reversing the decision of the Anvers Court of First Instance of July, 8 2010 and ordering Belgian ISPs, Telenet and Belgacom, to block DNS extensions for 11 domain names related to ThePirateBay. The Court clarified that ISPs do not themselves infringe copyright and are not liable for the content transmitting though their services. However, the safe harbours included in the e-commerce Directive do not prevent the court to order them to block infringing webistes, if, according to Article 8.2 of the Infosoc Directive "their services are used by a third party to infringe a copyright or a related right." These blocking orders, the Court continued, do not impose on the ISPs a general obligation to monitor the information that they transmit because the injunction only concerns a number of exhaustively mentioned domain names....
Court Decision

Brussels Court of Appeal, Civil, Scarlet Extended SA/NV v. SABAM (“The Tiscali/Scarlet case”), R.G. 2007/AR/2424, January 1, 2010

The Court of Appeal of Brussels had to answer the question whether an internet service provider could be required to install a filtering system with a view to preventing the illegal downloading of files. The Court had to consider the extent to which Internet service providers should support the operational and financial burden of the fight against piracy. Given the complexity of the matter, the Brussels Court of Appeal decided to refer two questions to the ECJ before deciding: ( 1 ) Can ISPs be compelled to take preventive technical measures in order to prevent illegal downloading? ( 2 ) If yes, to what extent technical and financial burdens can be imposed on them? See also the ECJ's Scarlet Extended judgment .
Court Decision

Anvers Court of First Instance, Civil, The Belgian Anti-piracy federation ASBL/VZW v. Telenet SA/NV & Belgacom SA/NV (The Pirate Bay case I), No. A/10/5374, July 8, 2010

The Court rejected the request of blocking eight "ThePirateBay" websites and other “ThePirateBay” websites extensions. The request was filed against two of the biggest Belgian Internet providers, Telenet and Belgacom. The Court rejected the request by arguing that ThePirateBay was online for a long time without a judicial reaction of the Belgian Anti-Piracy Federation (BAPF), and it was unclear which rights BAPF claimed to have been infringed.
Legal Opinion/Petition

Brussels Court of First Instance, Civil, SABAM v. Scarlet SA/NV (“The Tiscali/Scarlet case”), 04/8975A, June 29, 2007

In its report filed January, 3 2007, the expert witness presented 11 solutions that can be applied to block or filter file sharing, including 7 applicable to Scarlet/Tiscali. On the basis of this report and the submissions of the parties, the Court ruled that technical solutions do exist to stop copyright infringements of music files via P2P file sharing. Accordingly, the Court ordered Scarlet to implement such measures to prevent future damage, within a period of time of six months and under a penalty of a fine of 2,500 euros per day of violation. Scarlet was also ordered to provide SABAM a description of the measures taken.
Court Decision

Brussels Court of First Instance, Civil, SABAM v. Tiscali SA/NV (“The Tiscali/Scarlet case”), 04/8975A, November, 26 2004]

( 1 ) The Court had to answer the question whether an internet service provider could be required to install a filtering system with a view to preventing the illegal downloading of files. ( 2 ) The Court confirmed the possibility of introducing an injunction based on copyright infringement against an access provider even if said provider can benefit from the liability exemption regime provided for in the eCommerce Directive. The injunction does not presuppose any prior finding of fault, and therefore liability, on the part of the intermediary. ( 3 ) However, if the theoretical possibility of a blocking order against ISPs was confirmed, it remained to be seen if the provider has, in fact, the material possibility to comply with such an order. The Court ordered an expert testimony on this subject and the reopening of the...
Legislation

Law on Copyright and Neighboring Rights, August 01, 1993 [English version]

There is a contradiction between the applicable Rules of CIvil Procedure and the Law on Copyright and Neighboring Rights (LCNR), which requires a pending civil proceeding to be initiated before identification of infringers may be requested. In contrast, rules of civil procedure do not allow a court to open the civil case without the identification of the defendant at least by name. This means that while Bulgarian law implements the right of information provided by Article 8(1) of the EU Enforcement Directive, its exercise is hindered by civil procedure rules.
Legislation

Criminal code (spec. Art.172a-174, Article 159(1) and 159(3)), May 01, 1968 [English version]

( 1 ) Under the LCNR and the Criminal Code (CC), it is illegal to “upload (reproduction), distribute and make available (broadcast), transmits infringing content” on the Internet. Article 172а (1) of the Criminal Code states that “every person who uploads (reproduces), distributes and makes available infringing content or transmits, or makes any other use of the object of a copyright or neighboring right without the consent of the rightholder as required by law, shall be punished by up to five years imprisonment and a fine up to BGN 5,000”. The LCNR in § 2 (3-5) defines the terms “upload (reproduction)”, “distribute” and “make available (broadcasting)”. Both the Internet providers hosting the infringing materials and the end users who upload (reproduce) may be held liable under this provision because the law does not...
Court Decision

Supreme Court [Nejvyšší soud ČR], Civil, Liberec Pirate, 8 Tdo 137/2013, February 27, 2013

The Court upheld the criminal liability of an operator of video indexing site, which included number of copyright infringing embed links. The Court found that the defendant himself put the links on his website and hence directly infringed the copyright by communicating the works to the public. see also eisionline blog ; Martin Husovec, Czech Supreme Court: Embedding is Communication to the Public , Kluwer Copyright Blog 2012
Court Decision

City Court in Prague, First instance court, Civil, Share-rapid.cz, 31 C 72/2011-33, December 12, 2011

The Court hold an operator of a cyberlocker liable for committing a copyright infringement. As the decision came in the form of the default judgment against the operator, the grounds for the decision were not given. The plaintiff, however, claimed direct copyright infringement, arguing that loosing of the hosting safe harbor leads to communication to the public. If the Court accepted this, or some other basis for liability, is not clear. The Court obliged the defendant to pay 536.000 Czech crowns (19.507 EUR) from the title of unjust enrichment by letting the users to download the work almost 14.000 times by its default judgment. The case was appealed, but was rejected on appeal on merely procedural grounds. see also eisionline blog ; Martin Husovec, Case Note on the share-rapid.cz Case , 8 Revue pro právo a...
Court Decision

Supreme Court, Finreactor, 2010:47, June 30, 2010

The operators and administrators of Bittorrent tracker "Finreactor" were held to be jointly criminally liable for users' copyright infringement and, in consequence, also liable for compensation and remuneration. The hosting exemption was not applicable due to the awareness, knowledge and participation of Finreactor to the infringing activities. The case has been reported in English for example in Pessi Honkasalo, Criminal Proceedings Against the Administrators of a BitTorrent Tracker: Finreactor KKO 2010:47 , 32 EIPR 591 (2010). There have been also a number of appellate court decisions where the operators of DirectConnect hubs were similarly held to be responsible and liable for compensation (see below).
Court Decision

Court of Appeal of Helsinki, Elisa, S 11/3097, June 15, 2012 (Supreme Court denied leave to appeal)

These cases concerned blocking access to The Pirate Bay. Requests were granted, but the court approved the list of blocked IP addresses and DNS names. Court approval is required for any changes to this list. The cases have been reported in English (along with other cases) in Pekka Savola, Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers , 5 JIPITEC 116 (forthcoming 2/2014). District Court decision is also discussed in Marcus Norrgård, Blocking Web Sites – Experiences from Finland in Johan Axhamn (ed.), Copyright in a Borderless Online Environment (Norstedts Juridik 2012). For more extensive discussion in Finnish, see eg. Pekka Savola, Internet-operaattoreihin kohdistetut tekijänoikeudelliset estomääräykset erityisesti vertaisverkkopalvelun osalta’ (Licentiate of Science...
Proposed Law

Senate’s bill to establish compulsory collective management for the reproduction and communication to the public of plastic, graphic and photographic works by search engine

Senate’s bill offering to impose an automatic assignment of the right holder’s right to approved collecting societies, that would be in charge of negotiating agreements with search engine services in order to authorize the reproduction and representation of plastic, graphic and photographic works and the payment of royalties.
Proposed Law

Copyright Review Committee, Modernising Copyright, 2013

A report by an expert committee on reform of copyright law, including a draft Bill. Includes proposals concerning intermediaries, e.g. (1) that a “marshalling” exception be introduced for sites which index, syndicate, aggregate or curate online content and (2) that certain sections of the Copyright and Related Rights Act 2000 concerning transient and incidental copies be amended to come more closely into line with the CJEU’s approach to interpretation of the Information Society Directive.

North America

Court Decision

Goldman v. Breitbart News

New questions about framing after ten years of peace under the "server test"
This case asks whether in-line linking or framing of an image can violate the public display right under US copyright law. Diverging from long-standing precedent known as the “server test” under Perfect 10 v. Amazon and other cases outside its Circuit, the District Court here held that framing is an actionable public display. The lower court ruling caused considerable consternation among academics and civil society. Assuming the case is appealed, it will presumably draw amicus briefs and more commentary.
Proposed Law

Proposed Administrative Site-Blocking System for Copyright Infringement

A coalition called FairPlay Canada, largely representing an array of content and media interests, has filed an application with the Canadian Radio-television and Telecommunications Commission (CRTC) Monday proposing a new site-blocking system. Under the proposal, the CRTC would create an independent agency to "identify websites blatantly engaged in content theft" and require ISPs to block Canadian users from reaching them. The proposal itself is here , Michael Geist has blogged extensively in opposition, including this post . The CRTC is accepting interventions until March 29, 2018.
Court Decision

Cox v. BMG

This copyright case plays out against a complex factual backdrop addressed at trial and pleadings in the court below. The evidence included internal emails in which employees of Cox, a major ISP, express disrespect for, and arguably skirt compliance with, the Digital Millennium Copyright Act (DMCA). The DMCA requires that intermediaries implement policies for termination of repeat copyright infringers. In Cox’s implementation, users accused of infringement via DMCA notices were not suspended until after a tenth notice, and could be considered for reinstatement after later notices. The Court held that this policy was insufficient, and rejected an argument that users could be deemed repeat infringers only after judicial adjudication of infringement. By failing in this DMCA requirement, Cox forfeited the defense for its...
Legislation

Copyright Act, RSC 1985, c C-42

( 1 ) The most pertinent parts of this Act for intermediaries are sections 2.4(1)(b), 27 and 29. Section 2.4(1)(b), known as the “ Common Carrier Exemption ”, states that an intermediary is not liable for copyright infringement by merely providing “the means of telecommunication necessary” for others to communicate digital content. ( 2 ) Section 27 pertains to secondary infringement . Pursuant to section 27(1), the copyright owner holds the exclusive right to authorize any activities that involves his/her work. One issue, therefore, is whether intermediaries may be held liable for authorizing infringing acts carried out by their users. Section 27(2) addresses secondary infringement (e.g., when a person sells, imports or distributes illegal copies of material). ( 3 ) Provisions related to fair dealing are also relevant....
Court Decision

Mavrix v. LiveJournal

This detailed and somewhat confused opinion concerns LiveJournal, a blog hosting site. LiveJournal’s most successful hosted content, by a wide margin, is a celebrity gossip blog called Oh No They Didn’t. The platform stepped beyond its usual role in relation to this blog: it hired and paid a content moderator, who in turn managed teams of volunteer moderators. The teams rejected material on grounds of pornography, harassment, irrelevance (for gossip that is too old), and more - in sum, rejecting some 2/3 of uploads. They also enforced a list of sources that were not to be used on copyright grounds. The Court considers the platform’s defenses to copyright infringement under the Digital Millennium Copyright Act (DMCA), and concludes that the common law of agency applies. The Court holds that a jury must decide the...
Court Decision

Perfect 10 v. Giganews

This case affirms summary judgment in favor of copyright defendant Giganews’s Usenet service, and upholds massive attorneys’ fees against a plaintiff that shaped US Intermediary Liability law: the adult magazine Perfect 10. The court rejects a direct copyright liability claim, holding that Usenet lacked volition - and that the volition requirement for direct infringement remains intact after the Supreme Court’s ruling in Aereo. It also rejects a contributory liability claim, on the basis that defendant did not materially contribute to infringement. The court discusses the knowledge of specific material, rather than general knowledge of infringement, as it relates to the contributory liability test. It also rejects a claim of inducement liability under the US Supreme Court’s Grokster case. Considering a vicarious...
Court Decision

EMI v. MP3Tunes

This case concerns the latest business venture of serial copyright defendant Michael Robertson. In earlier proceedings, a jury ruled against the company, MP3Tunes. Here, the Circuit court considers multiple issues, including repeat infringer policies and red flag knowledge under the Digital Millennium Copyright Act (DMCA). Eric Goldman provides a more detailed summary here . Regarding the repeat infringer policy, the Second Circuit says: “at trial the plaintiffs could prevail by demonstrating that MP3tunes's failure to track users who created links to infringing content identified on takedown notices or who copied files from those links evidenced its willful blindness to the repeat infringing activity of its users.” It rejects arguments that this standard amounts to a monitoring requirement, in violation of 17 USC 512...
Court Decision

Capitol Records LLC et al v. Vimeo LLC et al, No. 14-1048 (2nd Cir. 2016)

Video-sharing website Vimeo LLC cannot be held liable for copyright infringement for unknowingly hosting older music (pre-1972) uploaded by its users. The 2nd U.S. Circuit Court of Appeals in New York held that the safe harbors provided by the Digital Millennium Copyright Act (DMCA) protect qualifying website operators from liability from such pre-1972 recordings, even though they are not covered by federal copyright law. The Court also held that the mere fact that Vimeo employees had viewed videos with copyrighted sound recordings was not enough to prove the company ignored red flags of infringement.
Court Decision

Capitol v. Vimeo

This case considers defenses under the Digital Millennium Copyright Act (DMCA) for video hosting service Vimeo. The court rejects plaintiff’s arguments, supported by the US Copyright Office, that the DMCA does not apply to sound recordings from before 1972. It also considers the DMCA’s provision that hosts forfeit their DMCA immunity if they have “red flag” or constructive (not actual) knowledge of infringement. The red flag knowledge dispute centers on “lip dub” videos, in which users lip sync or mouth the words of songs. Plaintiffs maintain that if platform employees see lip dub videos featuring full-length songs on the site, they can be charged with red flag knowledge that the videos are infringing. The court rejects this argument, noting that employees are not copyright or music experts, and cannot be expected to...
Self-Regulation/Voluntary Agreement/Code of Conduct

Canadian VPN providers voluntarily cut off by Payment Intermediary

Paypal has voluntarily blocked a number of Canadian Virtual Private Network (VPN) services from using its payment intermediary mechanisms, citing copyright infringement and the payment intermediary's acceptable use policy. The specific infringing activity that prompted Paypal to suspend payment services to these Canadian VPNs relates to the manner in which such services allow customers to access subscription services such as Netflix from various geographpic regions. Copyright licensing is terrotorial, meaning that streaming services such as Netflix obtain different content for different countries. A core functionality of VPNs is that individuals using such services to encrypt their network traffic will at times appear to be based in foreign countries. As a result, individuals using VPNs will be able to access content...
Court Decision

Stephanie Lenz v. Universal Music Corp., 5:07-cv-03783-JF (9th Cir. 2015)

( 1 ) The Court gave some breathing space to creators of User-Generated Content (UGC) from bogus takedown notices in cases of blatant misrepresentation of fair use defences by copyright holders and held that “the statute requires copyright holders to consider fair use before sending take-down notification.” ( 2 ) The Court also recognised the possible applicability of section 512(f) of the DMCA that allows for the recognition of damages in case of proved bad-faith, which would occur if the copyright holder did not consider fair use or paid “lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary.” However, the Court noted also that there’s no liability under § 512(f), “if, however, a copyright holder forms a subjective good faith belief the allegedly...
Court Decision

American Broadcasting Cos., Inc. v. Aereo, Inc., 545 U.S. 913 (2014)

holding that “Aereo publicly performs copyrighted works, in violation of the Copyright Act’s Transmit Clause, when it sells its subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as the programs are broadcast over the air.” However, the dissenting opinion argued that turning a secondary liability case into a direct liability case is a mistake and may work serious injury to the general public. Justice Scalia strongly objected to the majority view and noted that “Aereo does not perform at all. The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider . . . liability and adopting in their place an improvised standard ("looks-like-cable-TV") that will sow confusion for years to come.”...
Court Decision

Garcia v. Google, Inc., 743 F. 3d 1258 (9th Cir. 2014)

The footage of an actress' minor role in an unreleased adventure film titled “Desert Warrior”, was modified and incorporated into an anti-Islamic film titled the "Innocence of the Muslims", which was later uploaded to Youtube. The actress then received death threats from an Egyptian cleric. After Google refused to take it down from Youtube, plaintiff actress sought a restraining order seeking removal and that posting of the video infringed the copyright in her performance. 9 th Circuit Judge Kozinski ruled for the actress, holding that she had an independent copyright interest in her performance (although filmmaker had an implied license to use her performance, the filmmaker exceeded the bounds of the license); and that the actress faced irreparable harm absent an injunction.
Court Decision

Federal Court of Canada, Voltage Pictures v Does, 2014 FC 161

( 1 ) This case is an application of the principles laid out in BMG Canada v John Doe (see below) with respect to disclosure orders. Here, the claimant sought the identities of 2,000 users from TekSavvy, an independent ISP. Voltage argued that by downloading movies produced by their company via P2P file-sharing networks, these users infringed copyright in those works and their identities were needed to start legal proceedings. ( 2 ) Although the Court expressed concerns about “copyright trolls”, the disclosure order was ultimately granted because the claimant showed that it had a bona fides claim and privacy rights of the users did not outweigh the interests of the copyright holders. However, numerous safeguards against possible invasions of privacy were attached. For example, users’ information could not be released...
International Agreement

Trans Pacific Partnership Intellectual Property Rights Chapter [confidential text leaked on August 30, 2013]

Mexico is partecipating in the negotiation of this international agreement including a section on Internet service provider liability, with countries lining up either in favour of a general notification obligation or a notice-and-takedown system with the prospect of terminating subscriber Internet access and content blocking. Mexico favors the former approach. See M. Geist Blog post
International Agreement

Trans Pacific Partnership Intellectual Property Rights Chapter [confidential text leaked on August 30, 2013]

The dispute involved links to the website of a company that had been found to have stolen trade secrets from a competitor and used unfair competition tactics to lure customers into purchasing the copied products. The lower court issued an injunction ordering Google to remove search results for specific websites. The Supreme Court upheld this order, that is unprecedented for Canada as it forces Google to remove links for search queries coming from anywhere in the world, rather than only from the search results available through Google.ca. See also M. Geist Blog . See also CIS Blog Post
Legislation

Federal Law on Copyright, December 5, 1996, as amended on June 10, 2013

( 1 ) In Mexico there is no ad hoc legislation, such as the US Digital Millennium Copyright Act (DMCA). The Copyright Law contemplates provisions which accommodate concepts such as fixation, reproduction or communication to the public in the digital environment. ( 2 ) The Copyright Law does not make internet service providers (ISPs) liable or provide any safe harbours excluding liability in specific situations like caching, search engine, mere conduit or routing. The exceptions and limitations imposed by the Copyright Law are restrictive in scope and it would be difficult to invoke in connection with digital rights. ( 3 ) The Copyright Law of Mexico does not provide exceptions or limitations to copyright or neighboring rights in connection with the activities of ISPs or other intermediaries.
Court Decision

Capitol Records, LLC v. ReDigi Inc., 934 F.Supp.2d 640 (S.D.N.Y. 2013)

Capitol Records (CR), a record company, sued ReDigi, which operated an online marketplace for buying and selling pre-owned legally downloaded music, for copyright infringement regarding reproduction and distribution rights in sound recordings owned by CR. The Court held in favour of the plaintiff-copyright holder and rejected ReDigi’s “first sale” and “fair use” defenses. The Court sustained that Redigi's directly infringed CR's copyrights. In particular, the Court held that ( 1 ) ReDigi’s making unauthorized transfers of digital music files over the internet was reproduction and distribution for the purpose of copyright protection; ( 2 ) the “first sale” doctrine did not cover ReDigi’s distribution of CR’s copyrighted works; ( 3 ) ReDigi was also liable for contributory infringement and vicarious infringement of CR’s...
Court Decision

UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013)

Music publisher brought action against operator of publicly accessible website, Veoh, which enabled users to share videos with other users and website’s investors, alleging direct and secondary copyright infringement. District court dismissed the claims against investors and granted summary judgment to website operator. Circuit judge held that Veoh was entitled to the DMCA safe harbor protection, that is the site has no obligation to police for infringing content on its site, and that publishers failed to state claims against investors for contributory infringement, vicarious liability and inducement of infringement.
Court Decision

Supreme Court of Canada, Society of Composers, Authors and Music Publishers of Canada (SOCAN) v Bell Canada, 2012 SCC 36

Companies who allowed their subscribers to preview musical works via online streaming before making a purchase were found to not have infringed the copyright in those works. The Court held that these previews constitute fair dealing because 1) their purpose constitutes “research” under section 29 of the Copyright Act (e.g., research by consumers) and 2) their use is fair according to the six factors laid out in CCH Canadian v LSUC (see below).
Legislation

Copyright Modernization Act, SC 2012, c 20.

Copyright Modernization Act , SC 2012, c 20. ( 1 ) This is an amending Act to the Copyright Act (see below). Section 31.1 expands the exemption granted by section 2.4(1)(b) of the Copyright Act and is essentially a codification of the holdings from SOCAN v CAIP (see below). Section 31.1(1) states that ISPs, provided that they are content neutral, cannot be held liable by providing any means for Internet access. The fact that “any means” for telecommunication is used instead of “the means” necessary for telecommunication, which appears in section 2.4(1)(b), signifies that this provision is intended to cover a wider range of intermediaries that provide access to third party content such as blogging, video and social networking websites. Moreover, whereas section 2.4(1)(b) is only applicable in cases where the...
Court Decision

Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012)

Viacom, owners of copyrighted videos field infringement action against owner and operator of website that allowed users to upload video files free of charge. Second circuit held that actual knowledge or awareness of facts or circumstances that indicated specific and identifiable instances of infringement was required to disqualify online service provider from DMCA safe harbor.
Proposed Law

Stop Online Piracy Act (SOPA) of 2011, H.R. 3261, introduced in the House on October 26, 2011 (postponed)

( 1 ) This Bill was introduced to provide new tools to enforce online copyright infringment. These measures applied to "foreign infinging sites". This definition includes ( i ) U.S.-directed sites used by users in the United States; ( ii ) whose owners or operators are committing or facilitating the commission of criminal violations; and ( iii ) which would be subject to seizure in the United States in an action brought by the Attorney General if such site were a domestic Internet site. ( 2 ) The most relevant enforcement tools included ( i ) the requesting of court orders requiring Internet service providers to block access to the websites ( ii ) the requesting of court orders barring search engines from linking to the infringing websites, ( iii ) court orders barring advertising networks and payment facilities from...
Court Decision

Capitol Records, Inc. v. MP3Tunes, LLC, 821 F.Supp.2d 627 (S.D.N.Y. 2011)

( 1 ) Capitol Records, which owns copyrights in sound recordings, musical compositions, and images of album cover art, sued MP3Tunes, an online music storage service provider whose website allows users to store music files in their personal online music “lockers." On MP3Tunes, users can search for and transfer songs to their lockers. ( 2 ) The Court held in favor of MP3Tunes. The Court found that MP3Tunes qualified for safe harbor under DMCA, except when the songs were transferred from certain unauthorized websites. In this regard the Court noted that “if enabling a party to download infringing material was sufficient to create liability, then even search engines like Google or Yahoo! would be without DMCA protection. In that case, the DMCA’s purpose — innovation and growth of internet services — would be undermined."...
Proposed Law

Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act or PIPA) of 2011, S. 968, introduced in the Senate on May 12, 2011 (postponed)

This Bill is the Senate version of SOPA and a rewrite of COICA (see below). The Bill would give the US government and copyright holders additional tools to enhance "enforcement against rogue websites operated and registered overseas," which are dedicated to the sale of infringing or counterfeit goods. The Senate Judiciary Committee passed the Bill, which was later placed on hold after a wave of protests from civil sopciety and tech industry (see above). See also SOPA & PIPA EFF page
Proposed Law

Copyright Amendment Bill, implementing a Three Strike System, introduced on April 27, 2010

( 1 ) On April 27, 2010, the Mexican Congress filed and published a bill to amend the Copyright Law based on the HADOPI model. The bill aimed to protect copyrighted works through internet services providers (ISPs) covering access, hosting, and other service operations. The purpose of the bill is to implement a three-strikes system that resembles HADOPI 2. ( 2 ) Rights holders can ask the Mexican Institute of Industrial Property (IMPI) to request ISPs to render two warnings to users that allegedly infringe copyrights on the Internet. A third strike could be made by requesting injunctive relief (or “preliminary measures”, but it is unclear what court action would follow). ISPs who do not render the warnings are subject to administrative sanctions. This bill requires that ISPs take the high burden of using different...
Court Decision

Perfect 10 v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007)

Perfect 10, an adult entertainment magazine providing a subscription-only service online. Third party website publishers posted Perfect 10’s images on their own sites and were searchable on Google, violating Perfect 10’s terms of service as well as copyright. Perfect 10 sued Google for framing and hyperlinking to those websites on their image search service. The Court held Google not liable and Google’s search constituted a fair use of Perfect 10’s images because the use was highly transformative.
Court Decision

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct. 2764, 162 L. Ed. 2d 781 (2005)

Songwriters, music publishers, and motion studios brought copyright infringement action against distributors of a P2P file sharing computer networking software. The Supreme Court held that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
Court Decision

Supreme Court of Canada, Society of Composers, Authors and Music Publishers of Canada (SOCAN) v Canadian Assn. of Internet Providers (CAIP), 2004 SCC 45

( 1 ) Also known as the Tariff 22 case, this is the leading decision on ISP liability and copyright infringement. The Court denied the claimants royalties for copyrighted materials that were transferred on the Internet. It interpreted section 2.4(1)(b) of the Copyright Act (the “common carrier exception”) and found that ISPs are not liable as long as they are “conduit” for information (para 32). That is, if an intermediary remains content neutral, they are considered not to have communicated the content at all (para 111). For this reason, intermediaries are also immune from defamation liability (para 89). Whether an intermediary is regarded a conduit for information and thus qualifying for immunity under this section will primarily depend on its function. ( 2 ) To successfully use the “innocent disseminator” defence in...
Court Decision

Federal Court of Canada, BMG Canada Inc v John Doe, 2004 FC 488

Representatives from the recording industry sought an order to compel various ISPs to disclose the identity of those who used P2P file-sharing networks (KaZaA and iMesh) to share and download over 1000 music files that were protected by copyright. The court held that an order for the release of subscriber information may be granted if the copyright holder can show a bona fide claim and different interests including the subscribers’ privacy rights must be be balanced. Here, the order was denied because privacy concerns outweighed the benefits of disclosure. It was also noted that even if a disclosure is granted, the court could place certain restrictions on the order to protect the privacy interests of the accused.
Court Decision

Supreme Court of Canada, CCH Canadian Ltd v Law Society of Upper Canada (LSUC), 2004 SCC 13

( 1 ) The LSUC operated a library, and was accused of copyright infringement by providing photocopying services to its patrons. The Supreme Court ruled that the LSUC did not infringe copyright because its dealings with the claimants’ work were for the research purpose of its patrons and was fair. The courts will consider six factor to determine whether a dealing is indeed “fair”: ( i ) the purpose of the dealing; ( ii ) the character of the dealing; ( iii ) the amount of the dealing; ( iv ) the nature of the work; ( v ) available alternatives to the dealing and ( vi ) the effect of the dealing on the work (para 53). ( 2 ) Further, the Court held that a finding of authorization of infringement requires proof that the intermediary has done something beyond providing a neutral technology that could be used for copyright...
Court Decision

RIAA v. Verizon Internet Services, 351 F.3d 1229 (D.C. Cir. 2003)

Record Industry Association of America (“RIAA”) served, Verizon, an Internet Service Provider (ISP) with subpoena under DMCA 512(h), seeking to identify subscribers whom it believed had infringed their members’ copyrights by trading large amount of digital music files via P2P file sharing programs. RIAA filed motion to compel production. The District Court granted RIAA's motion, denied Verizon’s motion to quash and ordered to disclose the identity of the subscribers. The Court of Appeal reversed and remanded with instructions that Verizon is acting as a conduit for p2p file sharing, which does not involve the storage of infringing material on its servers.
Court Decision

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)

Record companies and music publishers brought copyright infringement action against Napster, an Internet service that facilitated the transmission and retention of digital audio files by its users. Circuit judge held injunctive relief was proper to impose duty to provide notice of copyright status upon plaintiffs, duty on service to search for copyrighted works that were subject of notice given by plaintiffs, and courts can require ISPs to use new filtering mechanism.
Legislation

Digital Millennium Copyright Act 1998, 17 U.S.C. § 512

Creating safe harbors for ISPs against monetary liability for copyright infringing material posted or sent through an intermediary’s system. Unlike §230, DMCA safe harbors don’t prevent suit for injunctive relief against an intermediary nor protect all Internet intermediaries except the four classes of intermediaries: conduit providers such as telephone companies, those who store or cache content hosted by another, and those who host content posted by another, and search engines. Safe harbor is available only to an intermediary that “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.” To benefit from the safe harbors, intermediaries must establish, publicize and implement both a notice and...
Court Decision

Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)

Universal brought an action against Sony alleging that video tape recorder (VTRs) consumers had been recording some of Universal’s copyrighted works that had been exhibited on commercially sponsored television and thereby infringed on their copyrights, and further that Sony was liable for such copyright infringement because of their marketing of the VTRs. The Supreme Court held that "the sale of the VTR's to the general public does not constitute contributory infringement of Universal's copyrights." The Court concluded that there was a significant likelihood that a substantial number of copyright holders who license their works for free public broadcasts would not object to having their broadcasts time-shifted by private viewers and that Universal failed to show that time-shifting would cause non-minimal harm to the...

Oceania

Court Decision

Pokemon Company International, Inc. v Redbubble Ltd [2017] FCA 1541 (19 December 2017)

Redbubble allows users to upload images to be printed on t-shirts and other products. Customers can order products that are printed on demand by third party manufacturers. The upload and fulfilment functions are mostly automated - Redbubble operates as a marketplace platform with limited prior screening of uploaded content. Redbubble requires uploaders to warrant that their uploads are non-infringing copyright, and blocks certain keywords as search terms. The court found Redbubble had infringed copyright: directly, by communicating the applicant's images to the public. While the uploader was the 'originator ... who had placed the image on the Redbubble website', Redbubble was directly liable because it 'was responsible for determining that content through its processes, protocols and arrangements with the artists.' (at...
Proposed Law

Copyright Amendment (Service Providers) Bill 2017 (Cth)

The Copyright Amendment (Service Providers) Bill 2017 is currently before the Australian Parliament. It proposes to extend the copyright safe harbours to a limited category of other 'service providers': organisations assisting persons with a disability; libraries; archives; 'key cultural institutions'; educational institutions.
Court Decision

Federal Court of Australia, Dallas Buyers Club LLC v iiNet Limited (No. 4) [2015] FCA 838

In a subsequent decision following Dallas Buyers Club LLC v iiNet Limited (see below), the court rejected Voltage Pictures’ draft demands as unreasonable and excessive. The court was satisfied Voltage could ask for the costs of a single copy of the film and an appropriately proportioned fee to recover its legal costs so far. However, the court rejected attempts to multiply these fees, potentially thousands of times, for other BitTorrent peers to whom the subscriber may have transmitted parts of the film. The court also rejected the claim for monetary penalties based on infringements of other copyright owners’ rights that account holders may have admitted to. >
Court Decision

Federal Court of Australia, Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317, 07

The Federal Court of Australia ordered preliminary discovery from iiNet and five other Australian ISPs of the information of 4,726 account holders of IP addresses believed to have infringed copyright in the 2012 film Dallas Buyers Club. The Court was satisfied that there was sufficient evidence for a preliminary discovery application. In making the order, the court imposed several conditions on the applicants. First, the information of the account holders could only be used for the purposes of recovering compensation for the infringements and should not otherwise be disclosed without the leave of the Federal Court. Second, a draft of any letter the applicants intend to send to account holders associated with the identified IP addresses must be submitted to the court.
Self-Regulation/Voluntary Agreement/Code of Conduct

Copyright Notice Scheme – Industry Code

Pending registration under the Telecommunications Act 1997 (Cth)
An industry-negotiated graduated response Code was submitted to the Australian Communications and Media Authority (ACMA) for registration as an industry code under the Telecommunications Act 1997 (Cth) on 8 April 2015. The Code introduces a Copyright Notice Scheme that requires Internet Service Providers to pass on warnings to residential fixed account holders who are alleged to have infringed copyright. The scheme consists of an escalating series of infringements notices. These notices include educational material designed to deter copyright infringing behaviour and educate consumers about available and lawful content alternatives. Upon receipt of a third and final notice within a 12-month period, account holders may challenge the validity of the allegations by having them independently reviewed by a panel. The Code...
Court Decision

Full Court of the Federal Court of Australia, Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187

Cooper and his hosting provider, Comcen, were liable for authorising infringements by users of his website, mp3s4free.net, which linked to infringing MP3 files on third-party websites. The index was populated by links submitted by users, but no infringing material was stored or communicated by Cooper or ComCen. The court found that Cooper had the power to prevent infringement because he could have not provided his website in the first place (Branson J) or could have not accepted or subsequently disabled and removed links to infringing content (Kenny J). Second, the relationship between Cooper and users was commercial, because Cooper benefitted financially from sponsorship and advertisements on the website which directly increased with the volume of infringing content. Finally, the court held that Cooper did not take...
Court Decision

Federal Court of Australia, Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242

Sharman, who operated the Kazaa filesharing platform, were found liable for authorising the infringements of its users. The court held that Sharman knew that the Kazaa system was primarily used to share copyright material. Infringing activity attracted more visitors to the Kazaa site, which benefitted Sharman through advertising revenue. Although there was no Kazaa central server through which Sharman could control users’ activities, the court held that Sharman had the power to prevent infringements because it could have forced an upgrade of the software to inhibit infringement. The court considered, for example, that a keyword filter could have been implemented, or Sharman could have flooded users’ search results with files containing only copyright infringement warnings. Since Sharman had the power to take these...
Legislation

Copyright Amendment (Online Infringement) Act 2015 (Cth)

Website blocking scheme : Section 115A of the Copyright Act 1968 enables copyright owners to the Federal Court of Australia for an injunction requiring ISPs to disable access to online services hosted outside Australia. Before granting the injunction, the Court must be satisfied that the foreign site either directly infringes copyright or ‘facilitates’ infringement. Rightsholders bear the onus of showing that the ‘the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).’ The Court must take into consideration a range of factors including whether disabling access to the online location is a proportionate response in the circumstances, the impact on any person likely to be affected by the grant of the injunction, and whether it is in the...
Legislation

Trade Agreement Implementation Act 2004 (Cth) Sch 9 & Copyright Legislation Amendment Act 2004 (Cth) Sch 1 (Safe Harbours)

Trade Agreement Implementation Act 2004 (Cth) Sch 9 & Copyright Legislation Amendment Act 2004 (Cth) Sch 1 (Safe Harbours ) Safe harbours for intermediaries were introduced as part of the Australia - United States Free Trade Agreement (Ch 17) by the US Free Trade Agreement Implementation Act 2004 (Cth) Sch 9 and amended by the Copyright Legislation Amendment Act 2004 (Cth) Sch 1. The safe harbours largely follow the structure of 17 USC 512, although they have been substantially redrafted. The safe harbours limit the liability for intermediaries to injunctive relief for transmission, caching, hosting, and indexing activities ( Section 116AG ). The conditions imposed on intermediaries seeking to rely on the safe harbours include a reasonably implemented termination policy for repeat infringers and a notice and takedown...
Legislation

Copyright Act 1968 (Cth)

Sections 36(1) and 101(1) establish the exclusive right to ‘authorise’ the doing, in Australia, of any act comprised in the copyright. Whether an intermediary has ‘authorised’ an act of infringement is a question of fact assessed in all of the circumstances. ‘Authorise’ is defined as ‘sanction’, ‘approve’ or ‘countenance’ (UNSW v Moorhouse 1975 HCA 26), and assessed with specific regard to: ( a ) the extent (if any) of the person’s power to prevent the doing of the act concerned; ( b ) the nature of any relationship existing between the person and the person who did the act concerned ( c ) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. ( Sections 36(1A) , 101(1A) ). ‘Mere conduit’ exceptions...
International Agreement

Australia-Korea Free Trade Agreement (KAFTA), signed on April 8th 2014 (Chapter 13, Intellectual Property Rights, Article 13.5)

Proposing an amendment of the Copyright Act 1968 in due course to provide a legal incentive for online service providers to cooperate with copyright owners in preventing infringement due to the High Court’s decision in Roadshow Films Pty Ltd v iiNet Ltd (see below), which found that ISPs are not liable for authorising the infringements of subscribers.
Court Decision

High Court of Australia, Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16, April 20, 2012

The High Court of Australia held that iiNet, Australia’s second largest ISP, was not liable for authorising its customers’ infringement of copyright films downloaded over BitTorrent. The Australian Federation Against Copyright Theft, now the Australian Screen Association, organised a lawsuit brought by 34 movie and television studios, alleging that iiNet was liable by failing to act upon notices alleging that users were infringing their copyrights. The court found that iiNet’s power to contractually terminate the internet accounts of infringing users was only an indirect power to prevent the primary infringements and insufficient to ground liability. Termination would also expose iiNet to the risk of wrongful termination, and would go further than simply preventing infringement by also denying iiNet customers the non...
Court Decision

High Court of Australia, University of New South Wales v. Moorhouse [1975] HCA 26; (1975) 133 CLR 1

The University of New South Wales was found liable for authorising the infringements of those who used the photocopiers it provided in its library. The case was brought as a test case, with plaintiffs alleging that UNSW was liable for making the photocopy machines available within its library without supervision and without appropriate notices about copyright rules. The High Court held that “authorise” in s 36(1) of the Copyright Act 1968 means “sanction, approve, countenance”. Two approaches to evaluating authorisation liability emerged from the case. Justice Gibbs stated the test which would later be codified in ss 36(1A) and 101(1A): “It seems to me... that a person who has under his control the means by which an infringement of copyright may be committed – such as a photocopying machine – and who makes it available...
Regulation

Copyright (Infringing File Sharing) Regulations 2011

( 1 ) These regulations set out the matters that must be included in a " rights owner notice " to be sent from rights owners to IPAPs under Sections 122A to 122U of the Copyright Act 1994 (see below). Each rights owner notice must identify all the alleged infringements against the rights owner's copyright that occurred at a single IP address during a single day. These regulations also prescribe the information required in infringement notices (in addition to the requirements set out in the Copyright Act); and challenge notices (which are notices that an account holder may send to a rights owner, via an IPAP, to challenge an infringement notice). ( 2 ) The regulations prescribe other procedural matters including the fee an IPAP may charge a rights owner; the fee for application to the Copyright Tribunal; the method of...
Legislation

Copyright Act 1994

( 1 ) A person who infringes copyright may face both civil and criminal proceedings under the Copyright Act. (i) The Act contains exemptions from infringement liability for transient & incidental copying that is an integral or essential part of a technological process, provided the original copy was not an infringing copy. ( ii ) The Act also contains exemptions from liability for Internet Services Providers (ISPs) and Internet Protocol Address Providers (IPAPs) , provided they comply with specified obligations. ( 2 ) An ISP is defined as any person who does either or both of the following: ( a ) offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing; or ( b ) hosts material on websites or other...

South America

Court Decision

Superior Court of Justice, Orkut (Google Brasil Internet LTDA), Special Appeal No. 1512647/MG (2013/0162883-2)

The Court ruled that content providers cannot be held liable for copyright violations committed by third parties in a case regarding whether the social networking site Orkut was responsible for copyright infringing user-generated content on its site. The Court ruled that Orkut’s does not profit from copyright infringement on the part of its users. The Court also ruled that Orkut could not be held responsible for links that users post to other pages containing copyright infringing material. See also CIS blog post .
Court Decision

Nakayama, Alberto y otros s/ infracción a la Ley 11.723

Cámara Nacional de Apelaciones en lo Criminal y Correccional, Sala I [National Criminal Court of Appeals], Expte. N° 21964 / 2014, May 5, 2015
The Criminal Court affirmed the lower court’s decision and declared Taringa's stay of proceedings, a site that hosts content uploaded by its users. María Kodama, heir to Jorge Luis Borges, brought a lawsuit against Taringa based on her rights to the work authored by her husband. The Criminal Court decided on the basis of " Rodríguez ", applying the same standard to a service different from a search engine. According to the Criminal Court, Google and Taringa are both "intermediaries whose main objective is to serve as a link" and reaffirmed that "there is not an obligation to verify the content ex ante but afterwards in case it is reported". The Court stated that "search engines" (or platforms like Taringa) are responsible for third-party content when they have "actual knowledge" of the unlawfulness of such content....
Court Decision

M. Belen Rodriguez c/Google y Otro s/ daños y perjuicios,

Corte Suprema [Supreme Court], Civil, R.522.XLIX.
This landmark case addressed the liability of search engines for linking in search results to third-party content that violates fundamental rights or infringes copyright. Because Argentina had no intermediary liability legislation at the time, the Supreme Court reviewed domestic and international law, and reasoned from tort principles and constitutional or human rights law. Its decision was largely favorable to search engines. The Court ( 1 ) repudiated a strict liability standard on the basis of the threat it would pose to free expression rights; ( 2 ) held that search engines could not be liable for unlawful content upon notification unless a public authority had adjudicated the material as unlawful, with exceptions for cases of "gross and manifest harm"; ( 3 ) rejected any filtering obligation to prevent infringing...
International Agreement

Trans Pacific Partnership Intellectual Property Rights Chapter [May 16, 2014 version of the consolidated negotiating text for the Intellectual Property Chapter for the Trans-Pacific Partnership]

Peru is participating in the negotiation of an international agreement including a section on Internet service provider liability, with countries lining up either in favour of a general notification obligation or a notice-and-takedown system with the prospect of terminating subscriber Internet access and content blocking.
Legislation

Marco Civil da Internet - “Brazilian Civil Rights Framework for the Internet"

Federal Law no. 12.965
The law introduces a liability exemption for Internet connection providers and the application of the safe harbor doctrine for other Internet application providers. Article 18 addresses the liability of Internet connection providers, grants an exception to those services regarding intermediary liability. It states that “the Internet connection provider shall not be subject to civil liability for content generated by third party”. Article 19 , which addresses Internet application providers (excluding connection providers) states that, “in order to ensure freedom of expression and to prevent censorship, an Internet application provider shall only be subject to civil liability for damages caused by virtue of content generated by third parties if, after specific court order, it does not take action, according to the...
Court Decision

CAPIF Camara Argentina de Productores de Fonograms y Otros c/ The Pirate Bay s/Medidas Precautorias

Juzgado Nacional de Primera Instancia en lo Civil [National First Instance Civil Court] No. 64, Civil. Expte. Nº 67921/2013
The District Court No. 64 in Buenos Aires issued an injunction to block access to the Pirate Bay website in a case initiated by the Argentine Chamber of Phonographic Producers. This is a so called "autosatisfactive" injunction that does not need any further determination of the merits of the case. Therefore, the decision is final unless appealed. Later, the Argentine National Communications Commission (NCC) ordered Internet Service Providers to implement the district's court injunction and block access to The Pirate Bay IP numbers and DSN domains in the country within five days. See also CIS bolg post
Court Decision

Superior Court of Justice, Fourth Panel, Google Brazil v. Dafra, Special Appeal No. 1306157/SP

Decision held that the ISP is liable for not acting to takedown all copies of a video (parodying a commercial of the motorbike company Dafra) that was uploaded several times by multiple users, regardless if there was not a precise URL indication of such videos. In particular, the SCJ noted that "(…) this special appeal is limited to the remaining obligation regarding those videos that contain the insulting title, whether they have been precisely appointed by the authors (with the mention of the URL's), or not, so long as they exist on the site with that precise ‘title’, and, after the provider has been formally notified of their existence. … there is reference about an expert testimony in the case records in which it was verified by the technical feasibility of controlling videos on YouTube, having the Court Expert...
Court Decision

“P., L. y otros"

Cámara Nacional de Apelaciones en lo Criminal y Correccional de la Capital Federal [National Court of Criminal Appeals, Buenos Aires capital District], Criminal
Confirmed the previous decision regarding a criminal lawsuit against 10 YouTube users accused of publishing a movie on the platform and infringing copyright law, in particular Article 71 of Law 11.723. The final decision concluded that contents that are uploaded on YouTube are not known in advance by the site administrators who, therefore, do not act as "guarantors" of the content and/or neccessarily partecipate in possible illegal actions. According to the ruling, YouTube is an intermediary enjoing a special contition due to its essential character of being a platform to share cultural information globally. The Court concluded that the inherent potential risks of this activity must be balanced with the benefits in terms of the dissemination of cultural content. It also noted that users uploading videos do not infringe...
International Agreement

Trans Pacific Partnership Intellectual Property Rights Chapter [confidential text leaked on August 30, 2013]

Chile is partecipating in the negotiation of an international agreement including a section on Internet service provider liability, with countries lining up either in favour of a general notification obligation or a notice-and-takedown system with the prospect of terminating subscriber Internet access and content blocking. Chile favors the former approach. See M. Geist Blog post
Paper/Research

Andrés Izquierdo, Fundación Karisma, “Intellectual Property Reform in Colombia: Future Colombian Copyright Legislation Must Not Place Overly Restrictive Burdens on Internet Service Providers that Unnecessarily Restrict Access to Information and Freedom of Expression of the People of Colombia (Glushko-Samuelson Intellectual Property Clinic, PIJIP Research Paper No. 2013-03, 2013)

Glushko-Samuelson Intellectual Property Clinic, in collaboration with Andrés Izquierdo and Fundación Karisma. 2013.Intellectual Property Reform in Colombia: Future Colombian Copyright Legislation Must Not Place Overly Restrictive Burdens on Internet Service Providers that Unnecessarily Restrict Access to Information and Freedom of Expression of the People of Colombia. PIJIP Research Paper no. 2013-03.
Legislation

Law 4868 of 2013, regulating the electronic commerce.

This is the main legislation concerning intermediary liability in Paraguay. The legislation defines the different types of intermediaries, the procedures they should respect to remove unlawful content from the internet, and define the liability of Access Providers (article 11), hosting services (article 12), linking services (article 13) and caching (article 14). The law protects service providers who meet certain conditions (not having knowledge of the unlawful material, acting expeditiously to remove illegal content upon knowledge) from monetary damages for the infringing activities of their users and other third parties on the net. Article 9, ‘c’, defines that providers are obliged to suspend access to content upon the request of competent authorities, if a content violates the moral and public order, public health...
Court Decision

“Incidente de medida cautelar en autos Escobar, Tomas s/ infracción Ley 11723”

Cámara Nacional de Apelaciones en lo Criminal y Correccional de la Capital Federal [National Court of Criminal Appeals, Buenos Aires capital District], Criminal, Expte. 1681/2012/2.
The website Cuevana, active since 2009, provides streaming links to several movies and TV series. HBO Ole Partners requested to completely block the website for a copyright law violation in connection with the Epitafios TV series. The plaintiff's request, based on Article 13 of the Copyright Law, was rejected by the Appelate Court in February 2013. The Court argued that such a measure seemed excessive and disproportionate. Copyright enforcement, the Court noted, must be balanced with regard to the protection of other fundamental rights of the persons affected by such measures. The ruling also indicates that it has yet to be determined if Cuevana is a website that just provides links or has an index of links leading to content which individual users are responsible for, or there are specific people designated to...
Court Decision

Imagen Satelital S.A. c/Quien Resulta Titular del Sitio Web CUEVANA s/Medidas Precautorias,

Juzgado Nacional de Primera Instancia en lo Civil [National First Instance Civil Court], Civil. Expte. Nº 72.792/2011.
On November 2011, following a claim from Imagen Satelital S.A., a judge ordered ISPs to block access, for all Internet users, to specific content on the website “Cuevana," including the TV series ‘'Falling Skies’’, ‘’Bric’’, and ‘’26 people to save the world’’. The blocking order was based specifically on Article 79 of the Copyright Law. The National Commission of Communications implemented the judicial decision and ordered the ISPs to block access to the infringing content.
Proposed Law

Draft Law No. 241 of 2011 – Senate by which a statute is issued to regulate copyright and related rights infringement liability on the Internet

This bill was passed in 2011 before the Senate to implement the FTA between Colombia and USA. However, the bill was archived few months later, when it was evident that there was no political willingness to push it through. It featured liability exemptions for Internet Service Providers (art. 4), including mere conduit (art. 5), caching (art. 6), hosting (art. 7), information location tools (search tools, hyperlinks and directories; art. 8) exceptions, for infringements to copyright and related rights by third parties that take place through systems or networks controlled or operated by ISPs. Providers of such services will not be required to compensate damages and will not be consider liable as long as they meet the conditions according to the nature of the service provided. These conditions include expedited removal...
Legislation

Law No. 20.435,

Amending the Intellectual Property Law
Together with new copyright exceptions and limitations and the new rules for collecting societies’ tariff procedures, this amendement establishes a regime of limitations on liability for information service providers, as defined in Artice 5 Y . A number of Articles deal specifically with intermediary liability. Article 85 L provides a liability limitation for ISPs as long as they comply with the conditions and requirements of this law, regardless of potential regular civil liability. Article 85 M provides general conditions for limiting liability of transmission, routing, or connection providers that do not modify or select content, or initiate or select the destination of transmissions. Article 85 N provides general conditions for limiting liability among caching service providers that respect access and update...
International Agreement

Free Trade Agreement (FTA) between Colombia and the United Sates, signed on November 22, 2006 (Chapter 16, Intellectual Property Rights, Art. 16.11, 29. Limitations on Liability for Service Providers)

This FTA has miscellaneous rules concerning IP Rights and ISP Liability, which resemble closely to the US DMCA provisions. However, the internal legislative proposals implementing the FTA and related intermediary liability provisions have been rejected by congress and regulation is still pending (see below). see also Free Trade Agreement USA - Colombia, ISP Side Letter ( English version )
International Agreement

Free Trade Agreement (FTA) between Peru and the United Sates, signed on April 12, 2006 (Chapter 16, Intellectual Property Rights, Art. 16.11, 29. Limitations on Liability for Service Providers)

( 1 ) This FTA has miscellaneous rules concerning IP Rights and ISP Liability, which resemble closely to the US DMCA provisions. However, the national implementation of intermediate liability rules for services providers is still pending with no clear schedule. ( 2 ) This Agreement also includes a side letter with particular rules regarding the information that notifications must include.
Legislation

Legislative Decree 822 Copyright Law

providing that ( 1 ) no authority or private party may authorise the use of a copyrighted work or any other work protected under Copyright Law or assist in its use if the user doesn’t have previous and written authorization from the copyright holder, except in the cases established by law, under risk of solidarity liability (article 39); ( 2 ) the owner, conducer or representative in charge of establishments where copyrighted works are communicated will answer in solidarity with the event’s organiser for any infringement that may happen on those premises (article 116).
International Agreement

Andean Community Decision No. 351 (Regional Level)

This is a Community legislation covering Colombia, Ecuador, Peru and Bolivia. This decision gives protection to intellectual works. Article 3 defines “distribution to the public”, “divulgation”, “retransmission” as making the work available to the public by any form. Article 13 gives the exclusive right to the author and/or right holders to authorize or prohibit the reproduction by any means. This decision does not specifically establish provisions regarding intermediary liability on the internet. However, Article 54 may find application in this context, where it states that “No authority or person, whether natural person or legal entity, may authorize the use of a work, performance, phonographic production or broadcast, or lend his support to such use, if the user does not have the express prior authorization of the...
International Agreement

Andean Community Decision No. 351 of 1993

This is a Community legislation covering Colombia, Ecuador, Peru and Bolivia. This decision does not specifically establish provisions regarding intermediary liability on the internet. However, Article 54 may find application in this context, where it states that “No authority or person, whether natural person or legal entity, may authorize the use of a work, performance, phonographic production or broadcast, or endorse his support to such use, if the user does not have the express prior authorization of the owner of the rights or his representative. In the event of non-compliance, that entity or person shall be jointly liable."
International Agreement

Andean Community Decision No. 351 Common Provisions on Copyright and Neighboring Rights

This decision does not specifically establish provisions regarding intermediary liability on the Internet. However, Article 54 may find application in this context, where it states that “No authority or person, whether natural person or legal entity, may authorize the use of a work, performance, phonographic production or broadcast, or endorse his support to such use, if the user does not have the express prior authorization of the owner of the rights or his representative. In the event of non-compliance, that entity or person shall be jointly liable.” This is a Community legislation covering Colombia, Ecuador, Peru and Bolivia.
Legislation

Law No. 1322, on Copyright

Gives protection to intellectual creations. Article 5 defines "publication" as communication to the public by any form or system.
Legislation

Brazilian Criminal Code, Federal Decree-Law no. 2.848

Article138, 139, 140, 154-A and 359 The Article 184 of the Criminal Code regards violation of copyright, which constitutes as crime making available to the public copyrighted work, by electronic means, without proper authorization. This provision was revised in 2003. “ Article 184 . Violate copyright and its related rights. Penalty - imprisonment of three (3) months to one (1) year or a fine. §1 If the violation consists in total or partial reproduction, in order to profit directly or indirectly, by any means or process, of intellectual work, performance or phonogram, without express permission from the author, performer, producer, as appropriate, or whom he represents. Penalty - imprisonment of two (2) to four (4) years and a fine. §2 The same penalty of §1 applies to whom, for the purpose of direct or indirect profit...
Legislation

Intellectual Property Law N. 11.723

A number of the judicial decisions regarding intermediary responsibility are based on Intellectual Property Law 11.723. The following articles have been repetedly applied in decisions dealing with intermediary liability: ( 1 ) Article 9 : No one has the right to publish, without permission from the authors or copyright owners, a scientific, literary, artistic or musical production that has been noted or copied during the private or public reading, execution, or exposition. ( 2 ) Article 13 : All of the provisions of this law, except those of Article 57, are equally applicable to scientific, artistic and literary works, published in foreign countries, regardless of the author’s nationality, as long as these authors belong to nations that recognize the right to intellectual poperty. ( 3 ) Article 71 : Whoever defrauds...