Establishing Certainty About Liability for Internet Service Providers and Safe Harbor Regulations

Abstract

This chapter will analyze the infringement liability for Internet service providers (ISPs) and safe harbor regulations. This chapter will first provide a definition of ISPs and the significance of setting up the legal certainty of their liability and exemptions. This chapter will also analyze indirect liability and safe harbor rules for ISPs established by common law cases. The influential safe harbor rule developed by the Sony case, contributory and vicarious liability developed from American landmark cases, and authorization and joint tortfeasor liabilities developed from Commonwealth landmark cases will be discussed. This chapter will then proceed to analyze a couple of liability and immunization rules enacted by statutes, including the notice and takedown regime, counter notification regime, and the subpoena procedure or Norwich Pharmacal order. This chapter will then elaborate on the recent developments in the conditions for ISP safe harbors and the remedies against ISP indirect infringement, taking the graduated response policy from the French government and injunction orders against ISPs in European courts as example. In this part, the approach of the graduated response policy, the influence of such a policy on copyright owners, ISPs and public users, and China’s response to such a policy will be further discussed. Typical cases in which ISP injunctions were granted will be analyzed to indicate the proportionality that courts should take into consideration when deciding whether to approve such remedies. This chapter will finally suggest recommendations to establish certainty for ISP liability and safe harbors in general and for China’s digital copyright reform on ISP issues in particular. Recommendations include the establishing of certain standards for important factors in the indirect liability of ISPs, reforming notice and takedown regimes by incorporating a grace period and exceptions, adopting a Norwich Pharmacal procedure to guarantee the privacy of subscribers and taking a multitude of approaches to better provide certainty for ISP liability.