Presentation given to WIPO workshop, Amman, Jordan

1. Andrés Guadamuz SCRIPT – University of Edinburgh The Evolving Role of Intermediaries: The Challenge of Regulating Their Liability

2. [Insert Apology]

3. "The Internet is a worldwide network of computers that contains millions of pages of information. Users are cautioned that many of these pages include offensive and inappropriate material. In general, it is difficult to avoid at least some contact with this material while using the Internet. Even innocuous search requests may lead to sites with highly offensive content. Additionally, having an email address on the internet may lead to receipt of unsolicited e-mail containing offensive content. A user accessing the internet does so at his/her own risk. Hotel X and its affiliates are not responsible for material viewed or downloaded by users from the internet." Wifi at my hotel

4. Internet Service Provider (ISP) Online services Google Facebook Twitter User generated content sites Blogger YouTube Flickr Internet café Hotel University Workplace Restaurants What is an Intermediary?

5. Early history

6. Are intermediaries liable for content placed by their Customers?

7. Compuserve was a Bulletin Board Service, a dial-in pre WWW system. Defamation case. Compuserve hosted forums managed by a third party. Rumorville, a newsletter provider, posted defamatory content against Cubby Inc, who sued for libel and unfair competition. United States District Court for the Southern District of New York which held that Internet service providers were subject to traditional defamation law for their hosted content. This ruling set the stage for various similar intermediary cases in the U.S. Cubby v Compuserve (1991)

8. An unknown person, purporting to be Dr Laurence Godfrey, a lecturer in physics, mathematics and computer science based in London , made a defamatory posting which appeared on Demon's news server in the UK . The posting could be read by Demon's customers. When Mr Godfrey asked Demon to remove the posting (having explained that it was a forgery), Demon did not do so. The court found that up until receiving notification of the existence of the allegedly defamatory posting, Demon could not have had sufficient reason to suspect that it was not made by Mr Godfrey. However, from the point that actual knowledge was received, the defence was no longer available. Godfrey v Demon (1999)

9. Liguecontre le racisme et l'antisémitisme (LICRA) complained that Yahoo! were allowing their online auction service to be used for the sale of memorabilia from the Nazi period. These facts were not contested during the case. The defense rested on the fact that these auctions were conducted under the jurisdiction of the United States. It was claimed that there were no technical means to prevent French residents from participating in these auctions, at least without placing the company in financial difficulty and compromising the existence of the Internet. The defendants noted 1. that their servers were located on US territory, 2. that their services were primarily aimed at US residents, 3. that the First Amendment to the United States Constitution guarantees freedom of speech and expression, and that any attempt to enforce a judgment in the United States would fail for unconstitutionality. As such, they contended that the French court was incompetent to hear the case. LICRA v. Yahoo! (2000)

10. Limiting Intermediary Liability

11. Article 10. Limitations and Exceptions (1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. (2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. WIPO Copyright Treaty 1996

12. § 512. Limitations on liability relating to material online (Safe Harbor) (a) Transitory Digital Network Communications. […] (b) System Caching. […] (g) Replacement of Removed or Disabled Material and Limitation on Other Liability.— (1) No liability for taking down generally.— Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing. Digital Millennium Copyright Act 1998

13. Article 12. "Mere conduit" 1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. E-Commerce Directive (2000/31/EC)

14. Article 5. Exceptions and limitations 1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2. Info Soc Directive (2001/29/EC)

15. Notice and TakeDown Regime

16. Intermediary Liability Redux

17. Grumblings about status quo

18. Case brought in 2007 U.S. TV channel Viacom sued YouTube (hence Google) for copyright infringement of videos uploaded by their customers. YouTube argued that most videos on YouTube are non-infringing, and they will take-down content (Safe Harbor). Case dismissed early 2010. Viacom v YouTube

19. The Belgian Society of Authors, Composers, and Publishers (Sabam) sued ISP Tiscali (later Scarlet). Sabamwanted Tiscali to install filtering software in its network which would allegedly curb illicit filesharing in P2P networks. The first ruling in the District Court of Brussels agreed with the claimants based entirely on expert reports about the feasibility of deploying filtering systems. Appealed. Court of appeals referred to European Court of Justice (ECJ) specifically on question of injunctive relief against intermediaries. Sabam v Tiscali (2007-Present)

20. In 2007, Irish Recorded Music Association (IRMA) members sued Eircom, the largest broadband provider in Ireland, over alleged illegal file sharing by subscribers. IRMA had previously demanded that Eircominstall content filters or take other steps to block IRMA's copyrighted music from being shared, but they did not comply. Parties settled out of court in January 2009. As a result, Eircom agreed to implement a three-strikes system, where alleged infringers will be detected by the record companies, IP addresses notified to Eircom, and users disconnected (after warnings) by Eircom. In August 2009 Eircom began filtering PirateBay.org to mixed results. Irish Recording Music Association (IRMA) v Eircom (2007-2009)

21. iiNet is an Australian internet provider, which was sued by Australian film producer Roadshow Films, part of the Village Roadshow conglomerate, and several Holywood studios. Test case for new ISP liability. The question at the heart of the proceedings was whether an ISP is to be held liable for the copyright infringement committed by its customers. The judge accurately identified that the case hinged on two simple questions. Have the iiNet customers infringed copyright directly? Yes. Has iiNetauthorised the copyright infringement of its users by failing to take steps to stop it from happening? No. Under appeal. Roadshow Films v iiNet (2010)

22. Disconnection, Graduated Responses and Three Strikes

23. “Haute Autorité pour la diffusion des oeuvres et la protection des droitssur Internet ” (2009) Troubled passage through parliament. In June 2009 French Constitutional Court extended freedom of expression to include “freedom to access the internet”. New graduated response passed in Parliament. Warning stage Investigations by rightholders’ accredited agents Rightholders can put their cases The HADOPI examines the facts (swiftly) Disconnection phase: Only court can disconnect (up to one month) HADOPI maintains list of banned subscribers HADOPI

24. Adopted in July 2009. Article 133bis of the Korean Copyright Act. Allows the Korean Copyright Commission to recommend ISPs to suspend the accounts of repeat file sharing offenders (as adjudged by the Commission) for six months. Users' email accounts are not to be suspended. 30,000 notices have been sent (by September 2010). No person has been disconnected (yet). South Korea

25. Will establish a multi-tiered obligation for intermediaries. ISP are under obligations to: monitor user activity; Provide content owners with lists of copyright infringers; notify users of infringement reports; limit Internet access (slow down connection) Finally, the ISP will disconnect user. Costs are shared between ISP and content owner. Appeals procedure. Specifics of the regime are under review by the telecommunications regulator (OFCOM). Digital Economy Act (2010)

26. New trade agreement negotiated initially in secret between US, EU, Canada, South Korea, Japan, NZ, Australia, and others. Initially was supposed to include three strikes. Seriously watered-down due to political pressure in several countries (particularly Canada and Europe). Intermediary positions are now considerably lower. Maintains notice-and-take-down regimes to a large extent. Anti-Counterfeiting Trade Agreement (ACTA)

27. Does it work?

28. Some emerging issues

29. The coming Cyberwar

30. The Great Intermediary War?

31. Questions?