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Should service providers be held liable for online copyright infringements?

Should service providers be held liable for online copyright infringements?

Liability of social media in online copyright infringement

As regards social media, it appears clearly that the principle behind any social media is to distribute user content to others. Whilst social media strongly encourage to share as much as possible, their terms of service simultaneously discourage it in a likely attempt to protect the social media from liability.  Whilst Facebook promotes the option “sharing”, Tweeter promotes the button “retweet”, Pinterest promote the option “re-pin”, the same websites require refraining from posting image without the owner’s permission. Spot the deliberate mistake.

As a matter of fact, it is clear that those intermediaries function with hypocrisy. But what is perhaps even more surprising is that the Law seems to protect them. The proof is in the numbers. For example, for Pinterest, it is generally recognized that up to 99% of pins are likely in violation of Pinterest’s Terms of Service. Yet, service providers have the obligation, under US copyright law, to take positive steps to remove infringing content from its website. However, Pinterest, like the other social medias, benefits from certain impunity for whatever reason. Yet, it is obvious that those social networks clearly encourage taking images from others, which normally constitutes a complicity to copyright infringement. Instead, Government continues to turn a blind eye in order to protect them.

 

Liability of search engines in online copyright infringements

The same is true for image search engines. The current trends show the willingness of courts to protect service providers by ruling that they do not violate copyright law by allowing a user to merrily engage in online infringement. The CJEU reached such a conclusion by setting out new rules based on Directive 2000/3156:

“The rule laid down

[in article 14 of the Directive at issue] applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned.”

The question of secondary liability of service providers has been addressed by the EU legislator in Directive 2000/31[1]. Article 14 expressly states “Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information”. Further, the provision gives the possibility to Member States to establish procedures governing the removal or disabling of access to information[2].

Visibly, a lawsuit for secondary liability will occur against the service provider only if a strong connection between the technology provider and the alleged intellectual property counterfeiter could be established. Nevertheless, such a connection is generally difficult, if not impossible, to prove. In this regard, the reluctance of the authorities is disappointing. Indeed, courts treat any service providers in the same way without making any difference among them. Yet, even if it is clear that some Internet service providers (e.g. Internet Explorer, Firefox, Safari) cannot control every user’s activities, the same is not true for content providers. Indeed, content providers (such as image search engines and social medias) are able to take a hard line on intellectual property rights.

 

Conclusion

The constant denial to impose liability on service providers creates, in our digital world, an open door to large-scale infringements. Clearly, whether speaking about image search engines impunity or social medias impunity, the actual system seems to protect these intermediaries at all costs, and even to the expense of copyright owners.

Admittedly, barriers to copying could never be totally secure, but refusing to impose a secondary liability to these service providers on a case-by-case basis reveals the courts’ failure to move with the technological revolution.

[1] Directive 2000/31 of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [2000] OJ L178/1

[2] Ibid. Article 14(3)

2017-04-26T01:59:57+00:00October 12th, 2016|Non classé, We share|