Secondary Liability

2006 Tatiana López Romero INTERNET SERVICE PROVIDERS' LIABILITY FOR ONLINE COPYRIGHT INFRINGEMENT: THE US APPROACH Vniversitas, julio-diciembre, número 112 Pontificia Universidad Javeriana Bogotá, Colombia pp. 193-214 ... Red de Revistas Científicas de América ...

arguments, but any ground they gained was lost when Congress enacted the Digital Millennium Copyright Act ("DMCA") on October 28, 1998. Congress felt ISPs had little defense against an owner claiming copyright infringement, and enacted the DMCA to protect the growth of the Internet. 2 Current case law indicates that the effect of the DMCA has been to impose on copyright owners the burden of attaching electronic countermeasures to protect the rights that they have been granted under traditional copyright law. Although it is not clear what exactly the first Congress intended when creating traditional copyright law, due to the closed nature of the committee meetings, their ultimate aim, as interpreted by the courts, was to stimulate artistic creativity. 3 Currently however, authors are faced with new obligations, such as the expense of detecting infringing uses on the Internet and the expense of installing electronic countermeasures for initial protection. These new obligations on copyright owners are affirmative responses that developed with the digital revolution. Assuming copyright owners invoke DMCA provisions to get an ISP to remove infringing material, that owner still has the initial duty to inform the ISP of the infringement.

Some have proposed "alternative compensation schemes" as a means of compensating copyright owners and creators for P2P activity while avoiding litigation. Some have proposed a streamlined dispute resolution system that would allow for enforcement in a manner analogous to the UDRP model. Others question whether private copying should necessarily be viewed as illegal and whether any alternative compensation scheme is viable. With all of these proposals, the question remains as to whether "alternative compensation" is really alternative. Copyright © 2005 The John Marshall Law School Cite as William W. Fisher, III, et al., Copyright & Privacy Through the Wide-Angle Lens, 4 J. MARSHALL REV. INTELL. PROP. L. 285 (2005). COPYRIGHT & PRIVACY THROUGH THE WIDE-ANGLE LENS*

The method to combating online infringement and digital piracy is comprehensive, encompassing legal, technological, and instructional initiatives. With the help of international cooperation, legislative efforts are concentrated on enacting anti-piracy measures and modernizing copyright laws. Content identification systems, watermarking, and DRM are examples of technological solutions. Legal repercussions, domain blockage, and ISP collaboration are all part of enforcement actions. Public understanding is the goal of education and awareness initiatives, and the consumption of lawful information is supported by innovation and alternative business structures. Effectively combating cross-border piracy requires international cooperation and norms.

The Internet has become a part of our everyday life. It has enhanced and enriched our lives making it possible for us to access information from anywhere in the world in the blink of an eye. However, it has also been used for illegal activities such as sharing copyright protected works without authorization, thus leading to the widespread of cyberpiracy. In an effort to protect their rights, copyright holders turned to ISPs as providers of information services for help to identify the infringers by revealing their users' personal data in order to initiate proceedings against them. Occasionally, right holders held ISPs liable for copyright infringements as enablers of service which was used to perform an illegal act. This further led to the collision of the fundamental rights to privacy, to conduct business, to protect property and the freedom of expression. As it threatened to endanger EU Single Market, the European Union attempted to establish a desired balance among fundamental rights through legal regulations and CJEU case law. The focus of this paper is on the legal status and liability of ISPs in the process of unauthorized distribution of copyright protected works in digital environment by using services they provide. Through examination of relevant regulations and case law, this paper proposes that the solution to the problem of digital piracy, without disturbing the balance of fundamental rights and neutral status of ISPs' can be found by combining legal provisions, the advantages of innovative technologies and educational measures.

Well-defined, secure and properly enforced property rights ensure that economic agents have security in their ownership of property and in their ability to take decisions with respect to that property 6. These rights enhance the workings of the economic system by ensuring incentives are compatible with both the sustainable use of scarce resources and the pursuit of economically and socially desirable outcomes 7. Arguably, these principles apply equally in the traditional economy and the burgeoning, knowledge-based economy focused upon the creation and dissemination of goods whose value derives from their unique information content. Copyright law is one of the principal means of protecting rights associated with creative works, whose value derives almost exclusively from their information content. In principle, however, copyright does not protect the ideas or information embodied in a work, but only the form of expression of those ideas or information. 8 Thus copyright law protects the expression of originality in a song, for example, or the expression of creativity in a painting, or an ordered collection of words expressing the author's thoughts in a book as an original literary work. The Act defines '"copyright" as "a property right that exists, in accordance with this Act, in original works of literary, dramatic, musical, or artistic works, sound recordings, films, communication works and typographical arrangements of published editions. A work is not original if it is a copy of another work; or it infringes the copyright in another work...." 9 Copyright protection appends automatically to a qualifying "work" without any need for formality-but for that reason it is not necessarily satisfactory, as a person who claims their

Information Technology is growing faster than any other communication vehicle in the history mankind. Invention of digital technology was the most important revolution in the last century. The influence of digital technology on information technology is phenomenal. The present millennium is witnessing a new culture that is internet culture. It is changing our lifestyle and way of doing business form traditional commerce to e-commerce. Originally confined to military establishment internet has due to its speed, inner creativity and flexibility, tremendous potential to disseminated information beyond the geographical boundaries. Today the internet is not only used for educational purposes but also for business. The availability of radio, telephone, television and computer made it possible to carry out most of the business activities on-line, through the information technology and communication network. The government of India by passing IT (Information Technology) Act 2000 and further amending it on 27th October 2009 has given fillip to cyber law. But various issues are not specifically covered by the Act, such as copyright, payment issues, media convergence, domain name, cybersquatting and jurisdiction. While these have wide ranging ramifications for the growth of e-commerce in India The continued rapid evolution of a number key technologies and convergence of broadcasting media, communication media, home electronics, and publishing on computers creating a lot of legal issues.

As we leave the Industrial Age behind us and move into the Information Age, the transition from "bricks and mortar" commerce to electronic commerce and from paper to electronic publishing pose major challenges for international intellectual property regimes. Electronic commerce has taken off. Whatever concerns about consumer acceptance there were five years ago have given way to "click and mortar" business models where ecommerce has an established role complementing traditional commerce. The digital publishing market segment, approximately $8 billion today, is expected to reach $70 billion by 2004. 1 A significant portion of the GDPs of the industrialized countries is now based on the production and distribution of knowledge. While there are still issues that need to be dealt with, primarily the infrastructure of consistent standards for transactions, digital commerce in digital property will certainly continue to grow. 2 Copyright and patent law worldwide, of vital importance to the production and distribution of knowledge, are struggling to keep pace with advances in technology. Intellectual property experts speak of the "growing incoherence" and "incipient breakdown" of the international intellectual property system." 3 There is the possibility that much of traditional copyright law may be marginalized.

Yes. The author’s making available right according to Article 8 of the WIPO Copyright Treaty (WCT) was adopted into the Swiss legislation in 2008 by virtue of Article 10(2)(c) of the Federal Act on Copyright and Related Rights (Copyright Act, CopA)1. According to this Swiss provision, the author has the exclusive right to make available his work “in such a way that persons may access it from a place and at a time individually chosen by them”. The wording of the Swiss provision corresponds largely to the one in Article 8 WCT. However, it is worth noting that the Swiss version, unlike the WCT original, does not include the element “to the public” and replaces WCT’s “members of the public” with “persons”.

The debate over the degree of flexibility at the disposal of national courts in Europe to grant, deny, or tailor, injunctive relief in patent litigation seems to be a never-ending story. In most jurisdictions, absent exceptional circumstances, findings of infringement lead national courts to grant, quasi-automatically, an injunction. However, some scholars as well as industry players, have argued that in light of recent changes in litigation behaviour as well as technology developments, a general principle of proportionality should play a more prominent role vis-à-vis injunctive relief. It is in particular with reference to Art. 3(2) of the Enforcement Directive that such claims have been made. If UK courts have been inclined to consider that, under certain circumstances, a balance of interests may take place before granting a permanent injunction, German courts on the other hand have firmly stood on the ground that the principle of proportionality should not interfere with the righ...

Copyright law, by virtue of its protection of intellectual capital and especially particular forms of expression, is in a constant state of flux.' Technological advances in two disparate areas continue to redefine copyright law while maintaining the crucial balance between the rights of copyright owners and those of users. One area of technological growth is that of reproduction and dissemination technology. Copyright law must acknowledge and conform to changes in the way we make and distribute copies of works and the ease with which this is accomplished. 2 Whether it be the printing press or the photocopier, videocassette recorders or digital audio tape recorders, copyright law must respond to technological advancements by protecting the copyright holders' interest in their creations while allow

The advent of the Internet has posed unprecedented challenges on enforcing copyright. Online copyright infringements are pervasive, while it is not easy to impose liability on direct infringers, i.e., Internet users. This leads to a debate over whether online platforms or online intermediaries, which are often named “Internet Service Providers” (ISPs), should be held liable for these infringing activities or not, and if so, how to balance between Internet freedom, technological innovation and the need for effective copyright enforcement in the digital era. The aim of this paper is to provide answers to these questions by analyzing ISP’s liability from different international approaches such as the United States, the European Union, and China; hence, some experience for Vietnam could be drawn. Finally, the authors make recommendations to address the shortcomings in Vietnam’s intellectual property law with respect to ISP’s liability. This research is perfectly timing, given that Vietn...

In Hong Kong, online auctions and market places 3 providers are well established. Yahoo! Auction, launched in 1999, boasts 1.5 million monthly unique visitors and 5.5 transactions every minute of an average value of HKD 424. 4 Similarly, Taobao 5 , the market leader in China 6 , counts 1.4 million users in Hong Kong and is one of the most visited sites in the world by volume of traffic. 7 On these platforms, as is the case in many jurisdictions, the sale of fake items and other forms of intellectual property infringements are an all too common occurrence

The evolution of social media encouraged a parallel evolution of blogging, sprouting a million-dollar industry that rivals magazines in content and influence. The rise of the blogging phenomenon created multiple niches for companies to grow, with new companies emerging to accommodate one of the largest business booms of the digital age. Despite the prevalence of the blogging industry, current copyright law does not accommodate bloggers effectively. While government agencies, such as the Federal Trade Commission (FTC), recognize the influence of bloggers, copyright protection for the blogging community remains inadequate. Cultivating a successful business in the digital age is difficult, but the blogging industry is an integral component o the digital business world and should be afforded greater copyright protection. However, there are several roadblocks bloggers experience in gaining effective protection for their creative content--namely, archaic registration methods with the U.S....

JIPITEC 11 (2020) 1 - The debate over the degree of flexibility at the disposal of national courts in Europe to grant, deny, or tailor, injunctive relief in patent litigation seems to be a never-ending story. In most jurisdictions, absent exceptional circumstances, findings of infringement lead national courts to grant, quasi-automatically, an injunction. However, some scholars as well as industry players, have argued that in light of recent changes in litigation behaviour as well as technology developments, a general principle of proportionality should play a more prominent role vis-a-vis injunctive relief. It is in particular with reference to Art. 3(2) of the Enforcement Directive that such claims have been made. If UK courts have been inclined to consider that, under certain circumstances, a balance of interests may take place before granting a permanent injunction, German courts on the other hand have firmly stood on the ground that the principle of proportionality should not i...

Prior to joining the NBS, he spent three years at the Dickson Poon School of Law at King's College London, where he completed his Doctoral research investigating approaches to, and challenges in, holding internet intermediaries accountable for infringements of trademark rights. His research was fully funded by the Dickson Poon PhD Scholarship grant. Prior to moving into full-time academia, he worked for over six years as a State Counsel attached to the Attorney General's Department in Sri Lanka. He holds a Bachelor of Science in the field of information technology from the Curtin University (Australia) and a Master of Laws (with first class honours) from the University of Cambridge, UK. He spent a year in Australia researching on the applicability of Australian laws relating to trademarks and consumer protection, as well as common law tort principles, to the context of trademark infringements committed in the online environment.

The ACTA agreement (anti-counterfeiting trade agreement) is a new international instrument in which there would be arranged for problems related to the enforcement of intellectual property, which would arrange the furniture and some issues that are not part of the TRIPS agreement. Negotiations for ACTA were launched in October 2007, with the initiative by the United States, the European Community, Switzerland and Japan. The adoption of the agreement aims at establishing new international standards for enforcement of intellectual property rights through the improvement of international cooperation, introducing best practices for enforcement of intellectual property rights and providing more effective legal framework. ACTA sparkled protests in 2011 and 2012 in all European cities and many scientific and political debates. The discussions were held about the contract went to two extremes in which the first regarded the document as a document of great importance to the protection of intellectual property, while others regard it as an obstacle to the dissemination of the work and methods of implementation of censorship citizens, the document that will prevent the possibility of using the internet network and will allow control of the citizens.

billion downloads globally." 2 TikTok features, among other things, users lip-syncing and dancing to popular music. 3 Due to TikTok users' ability to upload allegedly unlicensed music on the platform, major music labels are seeking "payment for lost royalties in any licensing agreement." 4 Because more than fifty percent of music published in TikTok videos is unauthorized, many are left "comparing TikTok's actions to those of Napster" in the early 2000s. 5 Now, "thousands of music publishing companies" are considering suing TikTok for copyright infringement. 6 Many social media platforms "across industries already employ a wide variety of. .. tools" that copyright holders can employ to prevent copyright infringement. 7 One of these services allows a copyright holder (sometimes referred to as a "rightsholder") to levy a copyright strike against a user that published allegedly infringing content. 8 The strike is essentially a warning that removes the allegedly infringing content from the social media platform and punishes the user that published the allegedly infringing content. 9 Copyright strikes have been a widespread issue for individuals who create content on online social media platforms. 10 These individuals, often referred to as "content creators," regularly experience unjustified use of their work product to create revenue for other entities. 11

In recent years, intellectual property law has paid increasing attention to issues of private international law. The American Law Institute promulgated Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Dispute in 2008. In Europe, the Max Planck Institutes’ Conflict of Laws in Intellectual Property Conflicts of Law effort is expected in 2010. However, neither of these projects has dealt explicitly with choice of law on contributory liability (or any other form of secondary liability that makes one party liable for the harm caused by another). Yet, actions premised on secondary liability are rapidly becoming the favored route for efficient enforcement on a worldwide basis. Examples include cases that attempt to impose liability on manufacturers of copying technologies for infringements caused by those who use their equipment; on purveyors of peer-to-peer file sharing software for the activities of those who download material withou...

This brief Article, written in connection with a Symposium hosted by the Vanderbilt Journal of Entertainment and Technology Law, addresses nascent criminal enforcement against contributory copyright infringement in connection with P2P file sharing. Using Judge Posner's analysis in the Aimster case as a lens, it discusses recent cases in Japan and Sweden. This Article contends that criminalization involves an inherent uncertainty involving an innovator's knowledge of, and intent for, the future uses of the platform by others. Despite the difficulty of this task, since Japan and the E. U. have seen criminal prosecutions brought against contributory infringers, it should not evoke much surprise that the U.S. music industry is seeking similar sanctions. However, criminalizing contributory infringement to sanction P2P may bring criminal punishment to bear on innovators with unclear overall effects. TABLE OF CONTENTS I.

Are search engines liable for trademark infringement for offering trademarks as 'keywords' to others than the trademark owner? Is the act of displaying or arranging the display of an advertisement for identical or similar goods to that of a registered trademark that has been selected and stored by an internet service provider infringing the trademark owner's exclusive right? Is the act of providing an information society service in e-commerce unlawfully encumbered by a flood of trademark complaints? The answer depends on perspective. This article discusses alternative ways of bridging grey areas between harmonizing legislation. It stops to ask whether, instead of how rights apply in new settings. It discusses the process of decision-making; i.e. how different approaches to interpretation affect different right positions. On the one hand, it considers trademarks as property that confers on the owner a right to exclude others, when harm is established. It asks what property protection entails for trademark owners, in theory and practice. On the other hand, it considers other interests explicit or implicit in legislation and weighs them against the legitimate interests of trademark owners, in new settings. It compares these approaches by using concrete examples from EU cases and concludes that there are alternative ways of bridging the gap between overlapping and conflicting directives.

In the wake of the millennium and the rise of the internet, legislative action was taken to shelter internet service providers (ISPs) from various forms of legal action. In the turmoil of chartering new and unregulated territory, such a safe harbor was deemed necessary to protect startup businesses. Today, these internet actors (e.g. Google, Amazon, and eBay) have grown strong and powerful. Thus, intellectual property holders have started to challenge this privilege in court. Increasingly, owners of famous marks seek liability and damages for direct and indirect trademark infringement in courts around the globe. This Article will focus on liability for ISPs when a third party sells counterfeit merchandise on the ISP’s site. Courts have reacted differently and consequently, three general theoretical approaches have emerged. Examples of each can be presented by looking at courts in France, Germany, and the United States. Courts in France impose full liability for willful trademark inf...

JIPITEC 3 (2012) 2 - On 3 April 2012, the Spanish Supreme Court issued a major ruling in favour of the Google search engine, including its ‘cache copy’ service: Sentencia n.172/2012, of 3 April 2012, Supreme Court, Civil Chamber.* The importance of this ruling lies not so much in the circumstances of the case (the Supreme Court was clearly disgusted by the claimant’s ‘maximalist’ petitum to shut down the whole operation of the search engine), but rather on the court going beyond the text of the Copyright Act into the general principles of the law and case law, and especially on the reading of the three-step test (in Art. 40bis TRLPI) in a positive sense so as to include all these principles. After accepting that none of the limitations listed in the Spanish Copyright statute (TRLPI) exempted the unauthorized use of fragments of the contents of a personal website through the Google search engine and cache copy service, the Supreme Court concluded against infringement, based on the gr...

Internet platform providers (IPPs) have the potential of reaching every online user of copyrighted works and of enhancing the licensing efficiency of copyrighted works. This chapter explores legal mechanisms to transform this potential into reality: an obligation on copyright holders to issue license to active IPPs, an obligation on passive IPPs to acquire license from collective management organizations (CMOs) and the oversight over IPPs. It then discusses the desirability of cooperation among IPPs and CMOs. It concludes by venturing to advocate an international agreement that would facilitate global licensing of copyrighted works.

Kenya's Copyright (Amendment) Bill, 2017, is nearing its final stage of consideration by Parliament. In this article, we provide a review of the Bill's provisions in respect of its treatment of internet intermediaries, specifically internet service providers (ISPs). We seek to establish the impact that the intermediary liability provisions in the Bill could have on ISPs' operations if the Bill is passed into law in its present form. We applaud the Bill's provision for a "safe harbours" regime, whereby ISPs would incur no liability, or limited liability, for certain specific intermediary actions. However, we also note that the framing of the Bill's notice-and-takedown provisions would require quasi-judicial skills on the part of ISPs, which may not be appropriate. We conclude by providing recommendations for how legislators could address the weaknesses in the Bill's treatment of ISPs.

The past 25 years have seen a ‘turn to culture’ in copyright scholarship. This cultural turn has produced an expansive account of copyright’s disadvantages with respect to qualitative cultural and political goals such as: promoting democracy, individual self-authorship, expressive diversity, and a more inclusive creative and discursive culture. A common view among proponents of the cultural turn is that copyright stands in the way of the democratization of creative and discursive spheres online. This article challenges that view. Online ‘free’ content economies — characterized by peer production, decentralized selection, and peer to peer content sharing — have not lived up to the hopes of cultural turn thinkers. I focus on structural matters (structures of incentive and structures of power), critically applying descriptive and normative frameworks of the cultural turn. Proponents of the cultural turn have been concerned about copyright’s role in concentrating cultural power. They sh...

, Megaupload, the now-defunct New Zealand-based file sharing and storage site, released a video for their tune "Megasong" (YouTube 2011), featuring appearances by artists and pop music icons such as will.i.am, Macy Gray, Kanye West, Mary K. Blige, Jamie Foxx, Russell Simmons and others who touted the virtues of its services. The video was initially posted on YouTube, but was quickly removed at the request of Universal Music Group (UMG), who applied the Digital Millennium Copyright Act (DMCA), as well as a prior special agreement with YouTube, which allowed them to remove any content deemed to be copyright infringing (Mills 2011). In this case, the reasons for the initial takedown were vague, but it was later alleged by UMG that one of the artists included had not consented that his likeness be used. Noting that the song was in fact an original composition, one of the key defence lawyers in the Megaupload case, Ian Rothken, noted: "What's going on here is that Universal Music Group is gaming the DMCA system to try to chill free speech when they disagree with the artists" (Hutchison 2012). As UMG could not fully and reasonably justify their rationale for the takedown, the video has since been re-uploaded and is currently available for viewing on YouTube and other video sites. One month later, January 2012, Megaupload's founder, German-born Kim Dotcom (née Kim Schmitz), and one of the primary vocalists on "Megasong", was arrested, along with three of his colleagues, in a dramatic raid on his mansion just north of Auckland. The scale of the arrest, which included members of the country's special elite squad, two helicopters, attack dogs, and seventy police officers, some heavily armed with assault rifles, was a spectacle rarely seen in New Zealand. Looking very much like a paramilitary raid, conducted by the New Zealand police at the behest of the FBI (who were in the country and on the ground the day of the raid), it was later revealed that they had been working closely with information garnered from copyright watchdog groups in The

The Digital Millennium Copyright Act (DMCA) has shaped the Internet as we know it. This legislation shields online service providers from secondary copyright infringement liability in exchange for takedown of infringing content of their users. Yet online payment processors, the backbone of $300 billion in U.S. e-commerce, are completely outside of the DMCA’s protection. This Article uses PayPal, the most popular online payment company in the U.S., to illustrate the growing risk of secondary liability for payment processors. First it looks at jurisprudence that expands secondary copyright liability online, and explains how it might be applied to PayPal. Then it considers legislative proposals and industry-self regulation that similarly target an increasing role for payment processors in the fight against online infringement. It argues that the introduction of a DMCA-like safe harbor for online payment processors offers a fairer and more efficient option for all stakeholders than the ...

Congress has unintentionally evoked copytraps, which exact thousands of dollars from the Internet user who innocently buys music without knowing that it infringes copyright. Copytraps arise when Web sites lure innocent users into downloading expression that seems legal but is actually infringing. Regardless of whether the Web site appears legitimate, whether a user's good-faith belief is reasonable, or whether the Web site owner is unaware that the material is infringing, users who download infringing material face strict liability punishment, and the penalties are severe. It is entrapment, with the spoils from the innocent going to large corporate copyright holders. The law facilitates copytraps because it governs circumstances today that were never contemplated when copyright's strict liability emerged centuries ago. What has been good policy for real space is bad policy for cyberspace. As copytraps become common, end users will increasingly encounter the unfairness of strict liability punishment and ultimately become reluctant to download from unfamiliar sites. The effects of copytraps cast doubt on the wisdom of strict liability: copytraps unfairly punish the innocent, foster copyright abuse, unduly burden commerce, restrict speech, and deter the dissemination of knowledge. Congress should therefore amend the Copyright Act. Rather than imposing statutory damages on innocent downloaders, the Act should require only that innocent downloaders delete infringing material. In the alternative, courts should interpret the Act's strict liability provision as not applying to online expression.

an attorney admitted in Italy, Argentina and in the State of Illinois, currently practicing in Chicago. I graduated with an LLM in International Intellectual Property at Chicago-Kent College of Law in May 2019 with honors. I express immense gratitude to my daughter Jasmine who supported me during my studies and to my mother. I would like to also thank my professors in Legal Writing: Edward Lee and Runhua Wang, as well as, professors: Alain Villeneuve, for his encouragement; and Graeme Dinwoodie, for precipitating my great interest in international copyright issues.

Directive 2000/31/EC on electronic commerce (hereinafter referred to as: "the directive") aims to remove obstacles to cross-border provision of on-line services in the Internal Market and to provide legal certainty to businesses and citizens. It was adopted on 8 June 2000. Articles 12 to 14 of the directive establish precisely defined limitations on the liability of intermediary service providers who offer mere conduit, caching and hosting. The study takes into account the fact that some Member States -motivated by the legitimate wish to provide for additional legal clarity -included in their transposition certain additional elements not covered by the directive, such as the liability of providers of hyperlinks, search engines or other intermediaries. The liability limitations in the directive apply to certain clearly delimited activities carried out by internet intermediaries, i.e. to the technical process of access and transmission provision, as well as storage of information provided by a recipient of the service in a communication network. The liability limitations provided for by the directive are established in a horizontal manner, i.e. they cover civil, administrative and criminal liability for all types of illegal activities initiated by third parties online, including copyright and trademark piracy, defamation, misleading advertising, unfair commercial practices, child pornography etc. The liability limitations of intermediaries were considered indispensable to ensuring both, the provision of basic services which safeguard the free flow of information in the network and the provision of a legally certain framework which allows the Internet and e-commerce to develop. Articles 12 to 14 of the directive do not affect the possibility for a national court or administrative authority to require a given service provider to terminate or prevent an infringement on a case-by-case basis (i.e. to issue injunctions aiming at removal of illegal information or the disabling of access to it) which is -in principle -subject to the national law of the Member States. Article 15 prevents Member States from imposing on internet intermediaries, with respect to activities covered by Articles 12 to 14, a general obligation to monitor the information they transmit or store or a general obligation to actively seek out facts and circumstances indicating illegal activities. This is important, as general monitoring of millions of sites and Study on liability of internet intermediaries -A. INTRODUCTION 12/11/2007 5/115 web pages would, in practical terms, be impossible and would result in disproportionate burdens on intermediaries and higher costs of access to basic services for users. However, Article 15 does not prevent public authorities in the Member States from imposing a monitoring obligation in a specific, clearly defined individual case (recital 47). Articles 14 and 15 do not affect the possibility for Member States of requiring hosting service providers to apply duties of care which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities (recital 48). The conditions under which a hosting service provider is exempted from liability, as set out in Article 14 (1) (b) of the directive, constitute the basis for development of notice and take down procedures for illegal information by stakeholders. As already mentioned above, Article 14 applies horizontally to all types of information. At the time when the directive was adopted, it was decided that notice and take down procedures should not be regulated in the directive itself. Instead, Article 16 and recital 40 of the directive expressly encourage selfregulation in this field. The study takes into account the fact that some Member States included in their transposition measures certain additional elements not covered by the directive, such as (statutory) notice and take down procedures for illegal content. Article 21 of the directive requires the Commission to submit to the European Parliament and the Council every two years a report on the application of this directive, accompanied, where necessary, by additional measures in order to take account of legal, technical and economic developments in the field of information society services. In November 2003 the Commission published a First Report on the application of the directive. Considering the lack of practical experience with the directive at that time the report concluded that proposals for complementary measures would be premature. No date has been fixed for the second report for which the current study will provide input. Study on liability of internet intermediaries -B. RECOMMENDATIONS 12/11/2007 12/115 The manner in which courts and legal practitioners interpret the E-Commerce-Directive ("ECD") in the EU's various national jurisdictions reveals a complex tapestry of implementation. This often reflects the distinct values found in each of the respective legal regimes. Moreover, changes in the social evaluation of the Internet (good or evil? enhancing communication or crimes and copyright infringements?), new techniques, and business models seem to have influenced legal practice and court decisions. This report examines conclusions which might be drawn from case studies undertaken in the different member states. It also considers statements from various stakeholder groups (including those presented at a conference on liability provisions in the ECD, organised in Berlin in May 2007). All of the proposals and suggestions in this report are made with due regard to the need to respect the existing legal framework established by various European Directives in this field, including those on InfoSoc 1 , Enforcement 2 , and Audiovisual Media Services 3 Directives. It should be borne in mind throughout that there are few legal areas where the conflict between stakeholder groups is greater than that between copyright holders and the telecommunication and E-commerce industry. Balancing the conflicting interests will be a difficult task, and accordingly the proposals and conclusions presented in this report are provisional. It should be noted that the conclusions of this report reflect exclusively the views of the consultants which do not necessarily correspond to those of the EU-Commission. The conclusions herein focus firstly on the structure of the ECD and propose amendments, before concentrating on general problems which overlap all the different kinds of liability privileges, but remain largely unregulated by the ECD such as injunctions and information location tools (hyperlinks, search engines). As regards the exemption from liability for mere conduit, there seem to be few problems concerning application and interpretation of the liability privilege regulated in Art. 12 ECD. 4 In contrast, court and administrative practice mainly had to deal with (administrative or civil 1 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ 167/10 of 22.6.2001. 2 Directive 2004/48/EC of the European Parliament and of the Council of 29.4.2004 on the enforcement of intellectual property rights, OJ 157/45 of 30.4.2004. 3 The European Parliament has formally approved without amendments the Council's common position on the new Audiovisual Media Services without frontiers Directive,

Los intermediarios de Internet, comprendidos en sentido amplio, están integrando diversas actividades que hacen que, mediante la expansión de sus capacidades de regulación por código o diseño, trasciendan su rol clásico de neutralidad frente a los contenidos. Este cambio ha permitido a nivel global a los gobiernos resolver el problema de la falta de control normativo de la red mediante el uso de las capacidades normativas de los intermediarios. El incremento de poder normativo se ha traducido en una expansión de las responsabilidades criminales de los intermediarios en los últimos tiempos, correspondiendo a políticas criminales que refuerzan el control público de los usuarios de las redes en situaciones identificadas como de riesgo social, tal y como se puede apreciar en materia de vulneraciones a la privacidad, pornografía infantil y ofensas a la reputación.

This talk proposal is about part of the work carried out in the context of the EU project MediaMixer. This project aim was to promote adoption of semantic technologies by the media industry. The proposal was based on a workflow enhanced by semantic technologies, as shown in Figure 1.

YouTube is the world's largest video sharing platform where both professional and non-professional users participate in creating, uploading, and viewing content. In this work, we analyze content in the music category created by the nonprofessionals, which we refer to as user-generated content (UGCs). Non-professional users frequently upload content (UGCs) that are parodies, remakes, or covers of the music videos uploaded by professionals, namely the official record labels. Along with the success of official music videos on YouTube, we find the increased participation of users in creating the UGCs related to the music videos. In this study, we characterize the UGC uploading behavior in terms of what, where, and when. Furthermore, we measure the relationship between the popularity of the original content and creation of the related UGCs. We find that the UGC uploading behavior is different depending on the types of the UGC and across different genres of music videos. We also find that UGC sharing is a highly global activity; popular UGCs are created from all over the world despite the fact that the popular music videos originate from a very limited number of locations. Our findings imply that utilizing the information on recreated UGCs is important in order to understand and to predict the popularity of the original content.

improperly, and in that situation the wronged party can recover for "wrongful seizure." 8 Even less well known is that punitive damages are available "in instances where the seizure was sought in bad faith." 9 Since the seizure statute was enacted there has been a relative handful of reported wrongful seizure cases.

Copyright enforcement was one of the early challenges to the rule of law on the internet and has shaped its development since the early 1990s. The Notice and Takedown (N&TD) regime, enacted in the Digital Millennium Copyright Act, offered online intermediaries immunity from liability in exchange for removing allegedly infringing materials upon receiving notice from rights holders. The unequivocal power of rights holders to request removal and the strong incentives for online intermediaries to remove content upon receiving a removal request have turned the N&TD regime into a robust clean-up mechanism for removing any unwarranted content. The N&TD procedure applies to private facilities, makes use of proprietary software, and is administered by private companies. This enforcement procedure is nontransparent and lacks sufficient legal or public oversight. Unlike copyright enforcement in court, where decisions are made public, we know very little about the actual implementation of the N...

Copyright enforcement was one of the early challenges to the rule of law on the internet and has shaped its development since the early 1990s. The Notice and Takedown (N&TD) regime, enacted in the Digital Millennium Copyright Act, offered online intermediaries immunity from liability in exchange for removing allegedly infringing materials upon receiving notice from rights holders. The unequivocal power of rights holders to request removal and the strong incentives for online intermediaries to remove content upon receiving a removal request have turned the N&TD regime into a robust clean-up mechanism for removing any unwarranted content. The N&TD procedure applies to private facilities, makes use of proprietary software, and is administered by private companies. This enforcement procedure is nontransparent and lacks sufficient legal or public oversight. Unlike copyright enforcement in court, where decisions are made public, we know very little about the actual implementation of the N...

More than fifteen years have passed since the two major U.S. statutes concerning the secondary liability of Internet service providers were adopted-the Communications Decency Act and the Digital Millennium Copyright Act. The statutes have been criticized; however, very little of the criticism has come from Internet service providers, who have enjoyed the benefits of generous safe harbors and immunity from suit guaranteed by these statutes. This Article raises the question of whether these statutes contribute to incumbent entrenchment-solidifying the position of the existing Internet service providers to the detriment of potential new entrants. The current laws and industry self-regulation may hamper the entry of new service providers into the market and thereby retard the technological progress that best serves society.

The emergence of platforms has transformed the digital economy, reshaping and recasting online transactions within the service industry. This transformation, as many have argued, has created new and unimagined challenges for policymakers and regulators, as well as for traditional, offline companies. Most scholarship examining platforms discuss their impact on employment law or consumer protection. Yet trademark law, which is central to the success of the platform enterprise, has been mostly overlooked within these discussions. To address this gap, this article discusses the emergence of two central forms of platform entrepreneurship — the platform, or “macrobrand” and the platform service provider, or the “microbrand.” As we argue, the macrobrand and microbrand interact with trademark law — and one another — in ways that challenge conventional models of trademark application and expose their existing limitations. In exposing how platform architecture causes an unsustainable tension ...

The Internet has become a crucial advertising tool for modern-day businesses. Increasingly, business enterprises are opting for online presence, and this phenomenon has significantly transformed advertising techniques. Consumers wish to spend less time and gain optimal results whilst searching for products and services on the Internet. In this setting, enterprising entities, such as Google, have sought to make maximum use of the need for online presence which has given rise to Internet advertising schemes such as Google’s ‘AdWords. The purpose of this paper is to assess the merits (or otherwise) of the recent ruling of the European Court of Justice (ECJ) in Google v Louis Vuitton. The analysis will compare it with the approach of courts in the United States and also draw on English jurisprudence. The discussion undertaken by this paper is topical given the recent decision of the French Supreme Court (Cour de Cassation) which appears to have followed the reasoning of the ECJ. The top...

This paper briefly examines the current regime of copyright law in Morocco and seeks to examine the status of orphan works in Morocco, in lieu its membership as the sole African country in the recently signed Anti-Counterfeiting Trade Agreement (ACTA). The paper concludes that Morocco can, and ought to, enact exceptions and limitations that facilitate meaningful access to orphan works in both analogue and digital formats

The advent of the Internet has changed how information and content were created, accessed, used, and distributed digitally. The Internet provides diverse opportunities for subscribers, users, private or business operators, and the public at large to enjoy fast and cheap global distribution and sharing of information, knowledge, and entertainment. Internet intermediaries have primarily remained the gateway through which internet users can access and enjoy the vast flow of data, digital information, as well as content in cyberspace. Unfortunately, these internet intermediaries are at the receiving end of many legal disputes involving violations of intellectual property rights, in particular copyright infringements all over the world. Being the 'gatekeeper' to the Internet and web-based services, the internet intermediaries were arguably best placed to block and remove infringed contents. The imposition of liability to internet intermediaries under the 'gatekeeper' rati...

The first part of the workflow is about automatic fragmentation of media assets to facilitate their reuse and repurposing, using the Media Fragments URI specification. These fragments are then semantically annotated during the second step of the workflow (using automatic, semiautomatic and manual approaches). Annotations are based on semantic data and existing vocabularies and ontologies. Finally, rights information is also attached to fragments. This information is also based on semantic technologies and the Copyright Ontology.

Extraterritorial application of U.S. law, as Professor Curtis Bradley demonstrates, is highly suspect, if not illegitimate, unless clearly authorized by Congress." The apparently "extraterritorial" character of much recent copyright litigation has led some U.S. courts to dismiss for lack of subject matter jurisdiction or on grounds of forum non conveniens when the cases present offshore points of attachment. 2 As copyright commerce becomes increasingly inter

This book examines alternative ways of protecting patent rights using the law and economics framework of property and liability rules. Traditional compulsory licenses are compared with the most recent discussions on the choice between granting or denying injunctive relief for patents (ex post liability rules). The debate about strategic behaviour triggered by the patent system, especially in the aftermath of the U.S. Supreme Court decision in eBay v. MercExchange is discussed along with policy perspectives on both sides of the Atlantic. The problem of calculating the level of compensation, which is one of the most important critiques against the use of liability rules in patent law, is also examined in depth. The book concludes by suggesting that a coherent patent system could opt for property rules in general cases while leaving enough space for exceptions and limited liability rules. Curtailing exceptions and limitations to patent rights, including the use of patent liability rule...