Intermediaries Liability for Online Copyright Infringements: The Duty to Cooperate Under E.U. Law

Abstract

The problem. The fight against copyright infringement has become more and more challenging in the last 20 years. The development of technologies (the Internet foremost) has created a dramatic change with respect to both the quantity and the quality of infringement.

From a quantitative point of view, the Internet and related technologies have made it possible to produce and disseminate infringing content with previously unknown ease, scope, and speed. As to the quality of infringement, the advent of the Web 2.0 in particular has effected a deep change in the very way infringement usually takes place, i.e., every single user is turned into a potential copyright infringer. Last but not least, modern technologies often give infringers the chance to hide themselves easily. For these reasons, it is very difficult (and sometimes impossible) for copyright owners to detect infringement that take places online, to identify the relevant infringers, and to take action against them.

The role of intermediaries as a possible solution. Realizing the impossibility of going after single infringers, copyright owners started looking with more and more interest at those entities that function as intermediaries on the web (providing users with the very Internet connection they use and/or with a number of related services - hereinafter referred to as “Intermediaries”), and therefore are much more easily identifiable and eventually “suable,” as opposed to single users. The “messenger” metaphor has sometimes been used to describe Intermediaries and the importance of their role for copyright owners: in order to prevent users from sending or receiving illegitimate messages (i.e., infringing content), it is much easier to “shoot the messenger” rather than go after every single user. Although only a few of the existing Intermediaries can be deemed as pure “messengers” (in particular, those that provide passive services as a so called “mere conduit,” and to a certain extent those who provide “caching” services), all kinds of Intermediaries attracted the interest of copyright owners. As a matter of fact, any entity could be considered an Intermediary, so long as it provides a service that somehow gives a means to, enables, helps or simply does not impede users from committing infringement.

First approach, case law and legislative evolutions. Copyright owners saw in the Intermediaries a much easier target for their legal actions. The first approach of copyright owners vis-à-vis Intermediaries was therefore not an amicable one: copyright owners sued Intermediaries, holding that they were liable in addition to direct infringers.

This approach, however, required the invention of new legal arguments in order to find Intermediaries liable for their activity. Copyright owners initially maintained that Intermediaries had to be found similarly liable as traditional publishers (e.g., newspaper publishers), who carry the risk of the content they make available to the public. More generally, copyright owners argued that Intermediaries actually take part in infringement, as they either facilitate infringement or simply do not impede it. Intermediaries reacted to these attacks by asserting that they have no effective legal or actual control over the infringement carried out by the users of their services, and that they should be classified as mere carriers rather than as publishers, i.e., having no liability for the content carried. In effect, they pointed out the inequity of “shooting the messenger.”

This conflict between copyright owners and Intermediaries was first brought before judicial authorities to develop concepts of liability from existing laws and principles. Later on, legislators (both national and international) made attempts to find a balance between the conflicting interests of all the parties involved.

US courts played the most significant role in developing this body of case law, establishing concepts like vicarious liability, contributory liability and inducement to infringe. At the same time, calls for protection from Intermediaries and the need to shield at least those Intermediaries that provide important services supporting civil society’s primary rights (such as the right of communication and freedom of expression) led legislators to find a compromise between these conflicting interests. Both the EU and USA issued new laws whereby certain Intermediaries were granted immunity (“safe harbor”) under certain conditions: Intermediaries should in principle be guaranteed freedom from liability for infringement committed by third parties, so long as they were prepared to cooperate with copyright owners when asked to remove or block access to identified illegal or infringing content.

This is what, in very general terms, both the US Digital Millennium Copyright Act and the E-Commerce Directive provided for in 1998 and in 2001, respectively: on the one hand, these regulations set the boundaries of Intermediaries’ liability and, on the other hand, established a mechanism of cooperation against infringement, both by means of so called “notice and takedown” procedures and by means of injunctions issued against Intermediaries directly by public authorities, i.e., courts and, to a certain extent, administrative authorities.

The duty to cooperate and its limits. This new legislation thus opened the door to a new idea of enforcing copyright: imposing a duty to cooperate on Intermediaries. This gave a powerful tool to those who were trying to find new remedies to online copyright infringements, particularly in light of the new services and technologies that emerged in the most recent years, leading to the creation of various schemes of cooperation that went far beyond the original model elaborated by early US and EU Law. According to these schemes, since Intermediaries themselves operate the web and have a closer relation to users (which in most cases are their clients), they should be pushed to control online activities, take steps against infringers and even prevent infringement.

In some cases, such a further duty to cooperate was imposed by local laws or other regulations (mostly in Europe – see the example of France and Italy in the following pages), and sometimes was the result of private voluntary agreements between copyright owners and Intermediaries (as is happening mostly in the USA). Moreover, while in some of these cases, e.g., Italy, Intermediaries are still required to merely “police the web,” other schemes made Intermediaries play a role also as “educators” vis-à-vis users, i.e., the are required to send warnings to users before appropriate measures are taken. This second approach is at the basis of the “graduated response” solutions that have been implemented (or proposed) in the past years.

None of the solutions outlined above are free of problems, however. To the contrary, most of them have been criticized for their alleged incompatibility with fundamental rights, freedom of expression most importantly. Moreover, the schemes in place so far are not as efficient as expected in reducing piracy.

The most recent debate regarding freedom of expression centered on setting limits on requirements for Intermediaries’ cooperation with these schemes so as not to impair fundamental rights. In this respect, the European Court of Justice (“ECJ”) has played a primary role in the past years. But the debate is still open, and both national governments and courts still seem to have no clear way in mind of how to handle the issue of copyright enforcement, especially in relation to the role of Intermediaries.

A difficult and exciting evolution is taking place right in front of us. Some examples of this evolution shall be further analyzed and evaluated in the present work.

Keywords: ISP, liability, infringement online, intellectual property

JEL Classification: K1, K2