Cloud providers and communication
to the public:(joint) liability or safe harbor?
Jacqueline Seignette

ALAI 2012 - Kyoto

Cloud models:
1. on demand delivery and cloud access to the samecontent (iTunes, iCloud, iMatch).
2. broadcasting and cloud access to the same content(UPC Online TV, Cablevision RS-DVR, Shift TV)
3. access to cloud copies of broadcast content
intercepted for that purpose by the provider (TVNow)
4. UGC (YouTube, Facebook, SoundCloud)
5. provider operates platform for public sharing of cloudcopies (Megaupload.com, Rapidshare)
6. storage in (semi)private lockers: Dropbox
7. etc.

Who is responsible for copyright uses in the cloud?
End user/subscriber

Cloud provider

direct liability

exempted

direct liability

indirect liability

joint liability

joint liability

not liabledirect liability

Why is this important? Because it defines theburden of proof and the measures to be taken by
the cloud provider to prevent or stop infringement(joint) direct liability

prior monitoring/filtering

indirect liability L-XL

prior monitoring/filtering

indirect liability S-M

take down/stay down

exempted

notice and take down

Creation of cloud copies → reproductionAccess to cloud copies → communication to the public?
Who is responsible for the reproduction?
Who is responsible for providing public access to cloudcopies?
•the consumer who uploads a file from his computer orclicks to have a copy made?
•or the provider who operates the system?

Cloud models:
1. on demand delivery and cloud access to the samecontent (iTunes, iCloud, iMatch).
2. broadcasting and cloud access to the same content(UPC Online TV, Cablevision RS-DVR)
3. access to cloud copies of broadcast content
intercepted for that purpose by the provider (TVNow)
4. UGC (YouTube, Facebook, SoundCloud)
5. provider operates platform for public sharing of cloudcopies (Megaupload.com, Rapidshare)
6. storage in (semi)private lockers: Dropbox
7. etc.

Allocation of responsibility for reproduction tends topreclude provider liability for communication to the public:•Fed. Ct. of Australia 2012 in TV Now (rev’d on appeal)•US 2nd. Cir. in Cablevision•BGH Germany 2009 in Shift TV
no communication to the public because:
1.reproduction is initiated by subscriber (click)
2.reproduction is a private copy
3.no communication to the public because the copy isavailable to the subscriber only.

But how real is this if the provider allows subscribers (byclicking) to make or have made a cloud copy from asource made available by the provider itself?
•iCloud, iTunes, iMatch: cloud copy available from Apple
servers without actual uploading by subscriber•TV Now: cloud copies of free to air broadcasts•Cablevision RS-DVR: cloud copies of cable tv
Allowing subscribers to create and access cloud copies inthese models is (just another) way of making content
available to the public. Here, it makes sense to hold thecloud provider directly liable.

Even if each subscriber is granted access to a separate
copy?
Yes. The cloud provider makes the work available to all
subscribers.
Article 8 WCT: .. any communication to the public of their works, by wireor wireless means, including the making available to the public of theirworks in such a way that members of the public may access these works
from a place and at a time individually chosen by themSee Supreme Court Japan in LocationFree
But see BGH in ShiftTVCloud models:
1. on demand delivery and cloud access to the samecontent (iTunes, iCloud, iMatch).
2. broadcasting and cloud access to the same content(UPC Online TV, Cablevision RS-DVR)
3. access to cloud copies of broadcast content
intercepted for that purpose by the provider (TVNow)
4. UGC (YouTube, Facebook, SoundCloud)
5. provider operates platform for public sharing of cloudcopies (Megaupload.com, Rapidshare)
6. storage in (semi)private lockers: Dropbox
7. etc.

In these models the cloud copy is not made from a source
provided by the cloud provider, but from a copy on thesubscriber’s personal computer/mobile phone/tablet.
Providing access to the cloud copy to other subscribers →communication to the public?

Communication?
yes, access to cloud copy by means of streaming ordownloading
to the public?
•yes, if the cloud copy is shared with subscribers outside
the private circle of the subscriber who uploaded the file•or: yes, if the cloud copy is shared with subscribers
outside the private circle of the provider?

Who is responsible for the communication to the public in
the cloud?
Somebody has to be responsible:•the subscriber who uploads the file to the cloud?
•the cloud provider?
•or both?

Where do you look at?
Do you look merely at who uploaded the file to the cloud?
If so, the uploading subcriber will be responsible for thecommunication to the public in the cloud. Liability of theprovider will be limited to indirect liability or subject to safe
harbor regimeOr do you look at the entire role of all parties involved?
Cloud provider: creates and operates platform for storage
and access, defines subscription terms, the scope ofuploading (type of content, software, format, capacity,
bandwidth), the scope of use (private, public, duration),the presentation of the content and the searchfunctionalities
Subscriber: uses the platform to upload specific content
within the terms and conditions set by the provider. If
possible within these terms, the subscriber defines whomay access the cloud copy.

1. selecting the content of the file to be uploaded
2. creating the cloud copy
3. determining scope of access------------------------------------------------------------------4. operating a system for storage and access
5. providing access6. defining subscription terms
7. defining the software, file format, type of content
8. determining the scope of use and sharing
9. determining the presentation
10. determining search functionality

Only 1-3 relevant for copyright liability? No, shift from safe
harbor to indirect or direct liability may occur if the cloudprovider takes more active control in areas 4-10.
More in particular, the provider will assume liability if he:-limits/defines scope of content to be uploaded. Note hat
provider may control content without selecting individual
content: popular content within the defined scope ofcontent is likely to be uploaded.
-allows for and stimulates sharing-controls the presentation, categorizes the content-facilitates the search of content-commercially exploits popularity of uploaded content

The more the cloud provider is active in one these areas,
the more likely liability will move from safe harbor toindirect liability or even direct liability.
Instead of being a mere hosting provider, the cloudprovider becomes a publisher.
Complication: relevant actions by different parties. E.g.
cloud access and search functionality offered by different
parties (cf. Rapidshare, Kino.to)The challenge for courts today is to define exactly
where the provider’s liability changes from safe
harbor into indirect liability or direct liability andwhat measures are appropriate in these regimes.
(joint) direct liability

prior monitoring/filtering

indirect liability L-XL

prior monitoring/filtering

indirect liability S-M

take down/stay down

exempted

notice and take down

Only very limited guidance in copyright treaties
WCT Agreed Statement 8:
It is understood that the mere provision of physicalfacilities for enabling or making a communication does notin itself amount to communication within the meaning of
this Treaty or the Berne Convention. It is further
understood that nothing in Article 8 precludes aContracting Party from applying Article 11bis(2).

• no supranational legislation on joint liability.
Requirements under national law do not always fit thecloud environment – concerted action• no supranational legislation on indirect liability• uncertainty about scope of safe harbor regimes innational laws and e-commerce directive 2000/31/EC→ role of case law predominant; no consistency so far→ courts (ECJ) acting as lawmakers

In this developing and still largely uncertain area, study ofcase law and comparative analysis is crucial and will
support the development of consistent case law andlegislationRole of ALAI important:-ALAI 2012 national reports
http://www.alai.jp/ALAI2012/program/national_report-e.html-intermediary liability on the agenda of ALAI 2013

Höcker Advocaten

Thank youJacqueline Seignette
seignette@hocker.nl