Lord of the Files: International Secondary Liability for Internet Service Providers

Table of ContentsI. Introduction 1555II. International Copyright Law and the WIPO 1560III. Specificity in Secondary Liability Legislation and Results ....... 1 564A. Implementation in the United States: The DMCA and Its Application 1564B. Liability in Viacom International Inc. v. YouTube, Ine ....... 1568IV. Open-Ended Secondary Liability Legislation and Results ......... 1 573A. The European Union's Approach to ISP Liability 1573B. Secondary Liability Law: National Interpretations and Applications in Four EU Member States 15751. France 15752. Spain 15763. Germany 15774. Italy 1578V. Creating Specificity Regarding Secondary Liability in International Law 1580VI. Conclusion 1587I. IntroductionHow responsible are those who provide Internet services for the actions of those who use those services? With Internet companies expanding beyond national borders1 and user-generated content now a substantial portion of Internet content,2 the international legal community is facing new issues of the legality of Internet behavior. One of those issues is assigning legal liability when copyright-infringing content appears on the Internet.An example may best explain this problem. A YouTube subscriber named Ayn R. is a fan of The Colbert Report on Comedy Central. In fact, she is such a fan that her user name is "colbertroxmysox," and she uploads digital recordings of the show onto her YouTube account. As she does not have permission from Comedy Central or its parent company to do so, this is a violation of copyright. These illegal copies sit on YouTube along with others and get many hits from other Colbert fans. One or two users "flag" them as inappropriate, but they remain on the site. Eventually, an employee of Comedy Central finds the videos while searching for Comedy Central content on YouTube. The company sends YouTube' s designated agent a list of copyright-violating videos, including identifying information such as the URLs of the offending content, among which are Ayn's uploads of The Colbert Report. YouTube removes the videos and sends Ayn an email informing her that she has violated her user agreement with YouTube and if she gains two more "strikes" her account will be terminated.3 Ayn creates a new account under the name "ColbertrulesCCdrools" and resumes uploading The Colbert Report.The problem is deciding at what point, if ever, in this list of events liability should attach to YouTube for Ayn's action. This Note explores the international legal landscape created by the variety of answers that courts in different countries have provided when copyright holders have asked that question. This Note also will argue that an international standard for secondary liability would be both possible and beneficial.The appearance of illegal copies of copyrighted material online is an acknowledged problem, with industry trade organizations estimating that a substantial amount of internet traffic involves pirated material, including as much as 95% of all downloaded music.4 Some commentators have questioned whether media industries and the trade federations they control inflate the numbers,5 but not the basic premise that illegal content is common online.6 At the same time, user-generated content is becoming a greater part of the Internet landscape. …