march 5, 2013 webinar - isp liability in europe and in the us
TRANSCRIPT
March 5, 2014
ISP liability for copyright and TM infringement���Developments in Europe and in the US
SPEAKERS Beatrice Martinet @beamartinet
ISP
What is an ISP/OSP or Internet Intermediary?
Web Hosting
Search Engines
e-commerce Platforms
Third party Content Platforms
Payment Systems
Social Media
P2P Platforms
Electronic storage of 3PC
Provide access to Internet
Why should they be liable for 3rd party content?
Right Holder ISPs/ OSPs User
CLAIMS § major loss from online
infringement § return on investment § whack-a-mole argument § OSPs benefit from
infringement (increased revenues)
§ OSPs are least cost avoider (control platforms)
§ consequence of their business
§ mere conduit § not at the origin of content § too much info (M of data) § threat to their business model § threat to free & open internet § go against balance set by
Congress § Right holders are least cost
avoider (know their rights better and whether use is infringing)
§ convenient access to information and goods anytime, anywhere
§ free speech § privacy
Free speech Privacy
Access to knowledge?
Freedom to conduct business Property right
CLAIMS CLAIMS
Why should you care about Europe?
q I. Applicable Law: country where protection is sought § See art. 8 of EC Regulation 864/2007 (Rome II)
q Relevant question? § Did any harmful event occurred in this country? § Availability of the website § public possibly targeted? See ECJ L’Oreal v. eBay (2011), Football Dataco v.
Sportradar (2012), Pinckney v. Mediatech (2013) § Factors: language, currency, purchase and shipping availability? Extension?
q Common Denominator approach § If you’re OK in the EU, you should be OK in the US § Standard for liability generally broader in Europe
What is their regime of liability in EU and US and how to tackle this issue globally?(Overview)
q I. Legal framework governing OSP liability in EU & US: § A. The DMCA and the e-commerce Directive: a broadly similar legal framework § B. Limited impact of the difference existing between the two systems
q II. Interpretation of this framework by US and EU Courts § A. A different interpretation of similar legal concepts § B. A different approach towards similar Internet intermediaries
q III. Best Practices § A. For right holders § B. For platforms
q Conclusion: what to expect in the future?
I. Essential regulations governing OSP liability US/EU
1996 WIPO copyright treaty
Mere provision of physical facilities for enabling
communication does not amount to
“communication” (note to art. 8 WCT)
1998 DMCA (17 U.S.C. ß 512 (a)-(k):
Safe harbor for some OSPs (conduit, caching, hosting and
linking services), subject to certain conditions.
2000 Directive 2000/31/EC (§4 art.
12-14) Similar provisions limiting liability
of OSP (conduit, caching, hosting but not linking services)
for third party content under similar conditions.
A. Basic Principles governing ISP liability: a broadly similar legal framework
Qualify as a service provider
Lack of knowledge standard
Adequate Reaction standard
Lack of control (& benefice?) standard
Both : act as an intermediary (not at the origin of content)
US only: (i) Designate agent to receive notification (Hosting) (ii) Adopt and reasonably implement repeat infringer policy (iii) Do not interfere with standard technical measures
Both: Actual Knowledge or Sufficient awareness (of facts and circumstances from which infringing activity is apparent)
Both: Expeditiously remove or Block access to infringing content
EU: (i) Platform’s control is over “recipient of the service”
(ii) Benefit not in Directive but relevant in some jdx
US: platform must also benefit from infringing activity
B. Limited impact of differences b/w the 2 systems
Directive DMCA Horizontal approach
(all kind of content)
Procedural Rules • Injunctive relief (512 (j)) : lR limited to
blocking access to specific user or specific content + least burdensome measure
• Notification and counter-notification procedure 512 (c)(g)
• Subpoenas (512 (h)) procedure to identify infringers
Vertical approach • CDA 230: all content except Fed. crim.,
Privacy & IP • DMCA: Copyright content only • IP outside DMCA: CL vicarious and
contributory liability
Procedural Rules • Injunctive relief: governed by national
law - expressly preserved in art. 12(3), 13(2), 14(3) e-com. Dir., 8(3) Infosoc Dir., 11 Enforcement Directive
• No harmonized notification procedure/ no counter-notification procedure
• Subpoenas governed by national laws
II. A Different interpretation of this common framework by US and EU Courts
• Eligibility under hosting and linking safe harbor
• Knowledge standard • Adequate response standard • Control standard • Financial benefit standard
• Search Engine and linking intermediaries
• Online marketplace and auction sites
• Social media and other UGC sites
• Peer to peer networks, bitTorrent, cyberlockers
Different interpretation of
similar legal concepts
Different approach towards similar intermediaries
II A. A Different interpretation of this common framework by US and EU Courts
Qualify as a service provider
US: Broad Concept
Adequate Reaction standard
Lack of control standard
Lack of benefice standard
EU: active/ passive standard Concept National Divergences
US: Narrow concept EU: broader concept National Divergences
US: Narrow concept EU: Blurry concept National Divergences
US: narrow interpretation EU: not relevant National Divergences
1. Eligibility under the hosting and linking SH
Eligibility under
hosting and linking safe
harbor
US
EU Neutral? (T, A & P)
Active role of such kind as to give it knowledge or control over the data (Google v. LVMH/L'Oreal
v. eBay)
Broad concept: "more than mere electronic storage" "encompasses access-facilitating process“ See e.g. UMG Recording v. Shelter (9th Cir, 2013)
But inducement incompatible with safe harbor See e.g. Grokster, Fung, Megaupload
Neutral role: - Being subject to payment, setting payment terms, providing general information, storing 3PC – all compatible (eBay, Google)
Active role: - drafting commercial message, suggesting keywords (Google) - providing assistance e.g. promotion or optimization of offers (eBay)
National Divergences
Non eligible: (After ECJ Decision) eBay (LVMH v. eBay, Supr Ct, May 2012), Tiscali (Tiscali v Dargaud – Supr. Ct 2008, Sedo (Supr. Court 2011),
Eligible: (After ECJ Decision) Google (SC 2010, CA Paris 2012), Dailymotion (NOP v. Dailymotion (Supr. Ct. 2011), Youtube (Youtube v. TF1, TGI Paris 2013)
Non eligible: IOL (RTI v. IOL (Milan, 01/11) Yahoo! (RTI v. Yahoo (Milan,09/11)
Eligible: Google ( RTI v. Google), (Google v. Vividown, Ccass, dec. 2013) ) &Yahoo! (RTI v. Yahoo! (Rome, 03/11 – 12/11)
Non eligible: Google (Google v. Copiepresse, Bruss. Court of appeal, 05/11)
Eligible: eBay (Lancome v. eBay, 2009)
FRANCE
ITALY
BELGIUM
2. Knowledge standard
Knowledge Standard
US: Narrow Concept
EU: Broader Concept
Copyright; Actual knowledge and Red flag both refer to specific instance of infringement Difference is b/w subjective and objective standard (“objectively obvious to reasonable person’) (Viacom v. Youtube (2nd Cir., 2012) - UMG Recording v. Shelter Capital (9th Cir., 2013) - Perfect 10 v. CCbill (9th Cir. 2007), Capitol Rec. v. MP3Tunes (SDNY, 2013)) General knowledge of infringing activity is insufficient (Amazon v. Corbis, WD Wah.04) No investigation required (Perfect 10 v. Ccbill, (9th Cir. 2007) But willful blindness = Knowledge (Napster (01),Grokster(05), Viacom (12), Fung (13)
Trademark: No general monitoring obligation (Tiffany v. eBay (2nd Cir. 2010) But constructive knowledge may trigger obligation to take affirmative steps (LVMH v. Akanoc (9th, 11))
- Operator may have to undertake some control on its own - Liability if aware of facts and circumstances on the basis of which a diligent operator should have identified infringement (L'Oreal v. eBay)
National Divergences UK
FRANCE
GERMANY
EWHC 07/28/11, TCF v BT “general awareness that their services are being used to infringe” enough to justify TD
Red flag knowledge: “Diligent operator” standard (FR CA, 09/10, LVHM v. eBay) e.g. of Red flags: (i) multiple notice of infringement, (ii) promotion and involvement in sales
But mere awareness that services may be use for infringing activity is insufficient if operator has shown willingness to take down infringing content (SAIF v. Google, NOP v. Daillymotion)
Red flag : Ricardo v. Rolex - German Fed. Court: price can be red flag sufficient to trigger filtering
3. Adequate response standard (specific v. general)
Adequate Response Standard
US
EU
Obligation essentially limited to taking down notified content (UMG Recording v. Shelter/ Perfect 10 v. Giganews (CD CAL 2014)
No general monitoring obligation but specific injunction might be possible based on art 11 of Enf. & 8(3)© Dir.: terminate or prevent specific infringement from occurring)
National Divergences UK
FRANCE
GERMANY
Blocking orders TCF v. BT (EWHC, July 2012) – EMI v. Sky (EWHC, Feb. 2013), First Row (July 2013), Paramount v. BT (Tubeplus and Solarmovie)
No monitoring obligation over past or future content, including when posted by repeat infringer (Perfect 10 v. Giganews, CD Cal. 2014)
No affirmative duty to remedy situation (eBay)
Scarlett v. Sabam (ECJ 2011) : Injunction OK if (i) not overbroad, (ii) limited in time and (iii) costs not exclusively borne by OSP Constantin v. Telekabel (AG Villalon): ISP can be required to block acc. to infr. site
No general monitoring (end of TD/SD doctrine? (Youtube v. SPPF (SC June 2013)) But monitoring OK if targeted + temporary (Google v. BAC films, Sup. Ct July 2012)) Good practice suggested by Ct: immediate take down + termination policy (eBay, Dailymotion)
injunction always possible even if safe harbor applies (Ricardo v. Rolex ) Youtube v. Gema: Youtube has obligation to filter out unlicensed GEMA content
3. Adequate response standard (injunction)
Adequate Response Standard
US
EU
No broad injunction (cf. 512 j)
Specific injunction can be based on art 11 of Enf. & 8(3)© Dir.: terminate or prevent specific infringement from occurring)
National Divergences UK
FRANCE
GERMANY
Blocking orders TCF v. BT (EWHC, July 2012) – EMI v. Sky (EWHC, Feb. 2013), First Row (July 2013), Paramount v. BT (Tubeplus and Solarmovie)
No affirmative duty to remedy situation (eBay)
Scarlett v. Sabam (ECJ 2011) : Injunction OK if (i) not overbroad, (ii) limited in time and (iii) costs not exclusively borne by OSP Constantin v. Telekabel (AG Villalon): ISP can be required to block acc. to infr. site
Monitoring OK if targeted + temporary (Google v. BAC films, Sup. Ct July 2012)) Blocking and dereferencing orders (w/r/t unauthorized movie streaming sites) recently issued against main ISPs and S.E. Google, Microsoft, Y!(TGI Paris 28/11/13 –allostreaming) Milan Court ordered blocking of Rojadirecta ex parte upon prelim finding of © infringement (chall. pend.)
injunction always possible even if safe harbor applies (Ricardo v. Rolex ) Youtube v. Gema: Youtube has obligation to filter out unlicensed GEMA content
4. Control Standard
Control Standard
US
EU
Essential factor under vicarious liability doctrine Lockheed Martin v. Network solution; Tiffany v. eBay (2nd Cir. 2010)
National Divergences
FRANCE
Essential inquiry in some decisions e.g. Dailymotion "not liable because no intellectual control over content"
Secondary factor (awkward formulation in Directive) –blended with knowledge “active role of such kind as to give knowledge of or control over the disputed data” Google France v. LVMH (C-236-08 & C-238-08) - L’Oreal v.eBay (C-324-09)
Under DMCA: narrow interpretation (but now independent from knowledge) - Viacom v. Youtube (2nd Cir. 2012), “something more than mere ability to block and remove content, w/o respect to knowledge” ; - UMG Recording v. Shelter (9th Cir. 2013) “capacity to exert subst. influence on activity of users, w/o necess. acquiring knowledge of specific infr. activity” - Vimeo (SDNY, 2013): e.g. of control: syst. monitoring or inducement
Outside DMCA: broad interpretation Napster: liable under contributory liability for failing to control its system while had the right and ability to do so.
Irrelevant in others e.g. LVMH v. eBay - relevant inquiry is not whether right and ability but whether has a duty to control
Other countries:
not relevant
Trademark
Copyright
5. Financial benefit standard
Financial Benefit
Standard
US
EU
Secondary factor see e.g. Viacom v. Youtube: - infringing activity must be a draw, not just an added benefit - value of service must lie in providing access to infringing content
Irrelevant factor see e.g. eBay, Google “The fact that the service is subject to payment cannot have the effect of depriving the SP from exemption of liability”
National Divergences UK
FRANCE
ITALY
Relevant factor: cf. TCF v. BT (EWHC, July 2012) EMI v. Sky (EWHC, Feb 2013), First Row (profiting from infringement on a large scale)
Relevant factor: "reap a benefice from infringement through percentage fee“ see eBay v. Parfums Christian Dior - Sedo (ibid) Ebay’s profit does not only result from the neutral hosting of data but from the attractive nature of its offers (eBay v,. Burberry)
Irrelevant factor: cf. Dailymotion: increased ad revenue is irrelevant
Relevant factor: RTI v. IOL - IOL offered services with a view to commercial benefit
B. Different approach towards similar intermediaries
Search Engine/Linking
providers
Online Market Place
Social media and other 3PC
platforms
Peer to Peer Networks
US
EU
US
EU
US
EU
US
EU
National Divergences
National Divergences
National Divergences
National Divergences
1. Search engine and linking intermediaries
Liability of SE and linking SP in Europe and in the US (1 of 2)
Search Engine
US
Linking to site containing infringing content is not © infringement (Pearson v. Ishayev, SDNY,13) Thumbnail = fair use (Kelly v. Ariba Soft; Perfect 10 v. Amazon (9th Cir 2003/2007)) Bookmarking is not infringing unless knowledge of specific infr. or inducement Flava (7th Cir.13)
National Divergences
UK
FRANCE
BELGIUM
Liable: e.g. Google v. Copiepresse (Brussels Court of Appeal, May 5, 2011) - liability results from own practice of selecting articles - no fair use b/c harm to primary market
No express mention of “linking providers” in the e-commerce Directive
Svensson (ECJ, Feb. 2014): linking to freely available content is not © infringement b/c to be infringing communication must target new public Two prejudicial questions remains before ECJ: Best Water, C more Entertainment
Google v. LVMH lets some space for liability if linking intermediary plays an “active role” (suggestions/advertising) and links to non freely available content (e.g. Paywall)
GERMANY
Not covered by exemption but not liable either b/c (i) extract not covered by (c) (Paperboy) and (ii) implicit license (Vorschaulbildder I/II)
FAPL v BT: First Row aggregates + indexes + links + provides frames to large number of UG live sport streams : direct or at least joint liability for unauthorized communication = Judge orders ISP to block First Row’s IP address (2013)
Google v. BAC films: Google eligible but may have specific duty Ledix.com: Bordeaux Ct convicted operator of site linking to infringing movie streaming Google v. Olivier Martinez (CA Paris 12/13) Google eligible, not liable for breach of privacy
EU Grey zone
Liability of SE and linking SP in Europe and in the US (2 of 2)
Search Engine
US
EU Grey zone
Linking to site containing infringing content is not © infringement (Pearson v. Ishayev, SDNY,13) Thumbnail = fair use (Kelly v. Ariba Soft; Perfect 10 v. Amazon (9th Cir 2003/2007)) Bookmarking is not infringing unless knowledge of specific infr. or inducement Flava (7th Cir.13)
National Divergences
ITALY
NETHERLANDS
SPAIN
RojaDirecta is a mere intermediary providing links enabling users to watch sports events – no involvement and no profit in connection w/ infringement: no liability (Madrid Prov. Ct, 2010); MejorTorrent: linking to infringing content is not a communication to the public: no infringement (Aug. 13) but contra Oct. 13
No express mention of “linking providers” in the e-commerce Directive
Google v. LVMH lets some space for liability if linking intermediary plays an “active role” (suggestions/advertising)
Three prejudicial questions pending before the ECJ: Svensson, Best Water, C more Entertainment
SC: Indexing and linking is contributory infringement b/c aid access to infr. Material: Sky liable (Calciolibero/sky): Milan Court ordered blocking of Rojadirecta ex parte upon prelim finding of © infringement (chall. pend.)
Playboy v. GeenStijl: Hyperlink to pirate content is no copyright infringement but can be tort (knowledge infr. activityV
2. Online Marketplaces and auction websites
Liability of online marketplace and auction website in Europe and in the US
Online marketplace
US
EU
- No liability for third party content except if failed to act after specific knowledge (Tiffany v. eBay (2nd Cir. 10)) - Brian Masck v. Amazon (ED Mich. 2013): Amazon may be liable under contributory liability for continuing to sell photo after notification of infringement (no DMCA discussion)
National Divergences
UK
FRANCE
BELGIUM
- eBay not eligible under SH b/c played active role, notably when assisted sellers to optimize and promote offers) (eBay v. LVMH, SC 05/12) liable for 3PC - eBay held liable for concealment/reception illicit profit (eBay v. Burberry, CA Pa 12) - 2xmoinscher not eligible under SH b/c offers searching, anonymity and escrow services (TGI Paris, May 13) but not liable since did not commit any fault
GERMANY
Platforms may be liable if plays an active role of such kind as to give it knowledge or control over infringing sale notably when providing assistance e.g. promotion or optimization of offers (L’Oreal v. eBay)
L’Oreal v. eBay, EWHC May 22, 2009 - QP to ECJ + 10 GP eBay could have taken to curtain infringement but that may not have any duty to take. NB: cases in FR, BE, GER and UK were finally settled in Jan 2014.
Lancome v. eBay (Belgium Court, 2009) – eBay eligible under SH/ not liable for 3PC
eBay eligible under hosting safe harbor but may have to conduct some filtering on ground of disturber liability (Rolex, etc.)
3. Social media and other UGC platforms
Liability of social media and other UGC sites
Social media &
other 3PC platforms
US
EU (no case law)
Red Zone: specific knowledge + lack of adequate reaction = liability
National Divergences FRANCE
ITALY
Google (Hosting providers but may still be liable under civ. liability (Bac films (CA Pa, 11), Dailymotion: hosting provider but liable for not blacklisting repeat infringers and not taking down content promptly (TF1 v. Dailymotion) Dailymotion (NOP v. Dailymotion (Supr. Ct. 2011),
GERMANY
Liable: IOL and Yahoo not eligible under hosting exemption b/c active role in organizing the service and selecting the videos (RTI v. Italia Online, Yahoo Milan, 2011)
Not liable: Yahoo! Google (Rome 2011)
Youtube v. Gema (2012): Google not liable as “violator” but must take filtering measures on the ground of “disturbing doctrine” (form of secondary liability)
Grey Zone 1: Willful blindness (aware of high probability + conscious avoidance) - UMG Recording v. Shelter (9th Cir. 13) ;Viacom v. Youtube (2nd Cir. 12 ) (remand))
Grey Zone 2: Red Flag knowledge? Subjectively aware of fact & circumstances that would have made specific infringement objectively obvious to reasonable person e.g. of Red flag? - Notification of specific material by third party? (Viacom v. Youtube) - Employee interaction (liking, commenting, white or blacklisting)? (Vimeo (SDNY 2013)
4. Peer to peer network, bit Torrent, cyberlockers
Liability of peer to peer networks, bitTorrent, and other Cyberlockers
Peer to peer websites
US
EU
Contributory liability e.g. Napster (9th Cir. 2001), Aimster (7th cir 2003), Grokster (SC, 2005), Arista Records v. Lime Gp, Usenet (SDNY 2009 and 2010), Perfect 10 v. Megaupload (SD Cal, 2011), Fung (2013)
National Divergences
NETHERLANDS
UK
SGAE v. DJGC (Barcelona): no liability for SP torrent website elrincondejesus.
SWEDEN
Kazaa v. Buma/Sterma: no liability b/c (i) no control and (ii) software has legitimate use. ISP XS4ALL has no obligation to block access to the Pirate Bay
But liability of “the Pirate Bay” and Mininova, for copyright infringement
TCF v. BT - "the Pirate Bay” - liable for copyright infringement
Vicarious liability e.g. Napster (9th Cir. 2001),
Inducement e.g. Grokster (SC, 2005), Megaupload (SD Cal, 2011), Fung (2013)
European Court of Human Right (F. Neij v. Sweden, Feb. 2013) confirms 1 year jail and 5 millions euros sentence for operator of TPB - no interference w/ freedom of expression
Atari Europe v. Rapidshare (OLG Dusserldorf, 2010): no liability for Rapidshare because complied with takedown notice and used for legal purpose by most users
liability of “the Pirate Bay”
GERMANY
SPAIN
BELGIUM
BAF v. Telenet & Belgacom: Belgium SC confirmed lawfulness of far reaching injunction ordering all ISPs to block access and ref. to The Pirate Bay
III. BEST PRACTICES
A. BEST PRACTICES FOR PLATFORMS
1. Be sure to qualify under a safe harbor
q Act as a service provider § Avoid commingling with third party content - see Vimeo, Tumblr § Beware of playing a too “active” role – see eBay
" Adopt and reasonably implement a repeat infringers policy § Must provide for termination of repeat infringers in appropriate circumstances § Inform subscribers and account holders of the policy § Must be reasonably implemented (keep records) but does not have to be perfect
§ see Fr. SC 2012: Dailymotion liable for not blacklisting repeat infringers § see Vimeo (SDNY, 2013), Corbis v. Amazon, (WD Wash, 2004 § See Perfect 10 v. Giganews, C.D. Cal 2014, no liability for not deleting all
content of repeat infringer
q Don’t interfere with standard technical measures § Disqualify OSP from protection under safe harbor (see Corbis v. Amazon) § Circumvention of TPM - DMCA specific offense (17 USC § 1201)
2. Assess the different theories of liability
Direct Liability
Contributory Liability
Vicarious Liability Inducement
§ Distribution of device suitable for infringement
§ Evidence of actual infringement
§ Intent to foster infringement (clear and affirmative steps)
§ Material Contribution § Knowledge
§ Volitional conduct (Perfect 10 v, Amazon)
§ Control § Benefit
Zoom on inducement
q Clear expression or other affirmative steps § Promoting infringing use of a product
§ e.g. advertising (Grokster, Fung) § Failure to filter out infringing content despite general knowledge
of specific infringement (ibid) § Helping localizing infringing content (Fung) § Avoiding taking any steps to diminish infringing UGC (Fung) § Offering reward or incentive to 3rd parties for uploading infringing
content (Megaupload) § Service with overwhelming amount of infringing content § Building an audience or a business model on IP infringement
(Grokster, Fung)
They bit the Apple!
3. Know what you are supposed to know
Actual Knowledge § In general reception of
compliant notice of specific infringement (P10 v. CCBill)
§ Concept may be broader in Europe
Red flag knowledge § Objective prong: Reasonable person (US)/ Diligent operator (EU) § Something more than reception of formal TDN (Viacom, MP3Tunes) § Interaction of Cie’s employee w/ content or 3P notices may qualify (Vimeo, Fung) § Interpretation is broader in Europe
Willful blindness § Aware of high probability of
copyright infringement § Consciously avoid confirming
that fact § Cf. Viacom, v. Youtube (2nd
Cir.12), P.10 v. Megaupload (S.D. Ca. 2011)
§ Not necessarily specific infr.
4. Take down infringing content timely
q Scope : in practice copyright and TM § See e.g. Tiffany v. eBay (2nd Cir. 2010), § Tumblr recently sued by Perfect 10 for ignoring TD notices § Amazon held liable for copyright infringement for ignoring several TD notices
" Communication: Do not blame the right holder for content taken down § See Youtube v. GEMA, Munich Feb. 2014: injunction forcing youTube to change its message “not
available because GEMA has not granted right” – Court says it misrepresents the situation and damage GEMA reputation (“not available due to lack of licensing agreement” would be OK)
" Time limit : can be very short
§ No uniform, definite time (vary w/factual circumstances & technical parameters) (Veoh) § But can be very short:
§ Dailymotion liable for taking down content “only” after 4 days (Fr. SC 2012) § eBay liable for not taking down infringing content within 72 hours (CA Paris and Metz 2013) § Industry standard? Google: 4M © TD request/week – average time: 6 hours
q Starting point: § US: reception of qualifying notification § Europe: for some Court, more informal knowledge can trigger obligations (cf. L’Oreal v. eBay)
5. Going beyond DMCA obligations?
q Setting up some kind of filtering systems in collaboration with R.H q Avoiding gaining any financial interest from piracy
§ Cf. industry voluntary agreement to remove ad from websites dedicated to piracy
§ Cf. Avoid building you business model on piracy
q Taking reasonable (business compatible) steps to combat piracy § Cf. UK decision in L’Oreal v. eBay and FR decision in LVMH v. eBay – good practices involves
§ preventive filtering, § restrictive selling conditions w/regard to items most likely to be infringed, § strict repeat infringers policy, § immediate withdrawal of any infringing offers, etc.
B. Best Practices for right holders
Best Practices for right holders (1)
q 1: Monitor the use of your rights online § DMCA places burden to police © infringement on RH (P.10 v.CCBill) § DMCA notices must clearly identify material and not put burden on ISP (P10 v,
Giganews)
" 2: Collaborate with platforms' anti-piracy strategies § see FR case Dailymotion – RH forfeited rights by refusing to collaborate
q 3. Send compliant TD notices (see 512(c)(3)(A)) § see P10 v. CCBill; P10 v.Yandex, (ND Cal 13), P10 v. Giganews (CD Cal 14) § Adequate info to find and address infringement expeditiously (Viacom)
§ e.g.: URL addresses (Congress, youtube) § Search instructions and representative examples are insufficient (Giganews)
Best Practices for right holders
q 4: Do not “abuse” the take down system
§ Make sure you have a valid claim Cf. Sogelink v. Sig Image: Fr Supr Ct held a company liable for using Google take down system when the use of their TM as a keyword by their competitor did not create consumer’s confusion (May, 2013)
§ Do not misrepresent the reality (512 (f) See Lenz v. Universal Music (baby dancing on Prince) (ND Cal 08): lack of consideration for fair use before sending TD notice: sufficient basis to state a claim for misrepresentation 512 (f)
§ Beware of possible backlashes (Unfair competition, Business interference, False advertising, Libel, etc. counterclaims)
• Counterclaims • DJ: See e.g. Lawrence Lessig’s v. Liberation Music or CrossFit v. Alvies (Facebook page of mom fans’ blog): claims based on 512 (f), unfair competition, false advertising, business interference, etc. • TRO/SJ: See e.g. Lunchmaster v. Choicelunch (SF): SJ ordering withdrawal of abusive TD notice
Practical ways to combat infringement: alternative business models
q Free, freemium & advertising-supported models
q Micro payment q Subscription
q Cross-subsidization
q Many proposals of legislative reforms § US: SOPA, OPEN, § International: ACTA § Europe: SINDE, AGCOM, HADOPI, DEA etc.
" Limit of legislative reforms? § Lack of consensus and fundamental rights issues
§ Protecting ISP further? Which response to piracy? § Increasing ISP involvement in fight against piracy?
§ Opportunity? Costs on innovation, entrepreneurship, freedom of information § Means: Injunctive relieves? Dereferencing? Cutting stream of revenues - limits
§ Cracking down on users? § Limits to graduated response models – efficiency, unpopularity, § Fundamental rights issues: digital exclusions and free speech
Conclusion: Moving forward, what to expect? Legislative reforms?
q Filtering & other technological answers § Protective blocking (DRM) & limits (circumvention, over-blocking, etc.) § Voluntary blocking
§ Collaborative solutions (Content ID, Vero, etc.) § Unilateral solutions: opt in and opt out systems (Google books, Pinterest Pin in/out) & limits
§ Compulsory blocking – Court blocking orders (UK, IR, FR, NL,B.) & limits
q Stakeholders dialogue § Voluntary and political initiatives
q Facilitating enforcement of IP rights § Alternative Dispute Resolution § streamlined procedure (small claim tracks, etc.)
q Facilitating licensing process of online content § Main hurdle to distribution of legal content: clearing and licensing process § Different proposal in this regard
§ International registry of Copyright (Global Repertoire, Linked Coalition) § Single Digital Market for copyright § Machine readable copyright symbols (EPC big idea for EU Digital Agenda, CC project…) § Collective Right Management Directive (just adopted by EP): cross borders © license (streaming)
Technological answer, collaborative efforts & streamlined enforcement licensing
