Hosting ISPs’ Secondary Liability Under the Roof of “Safe Harbor” Provisions

Abstract

The previous chapter discusses under what circumstances a hosting ISP meets the threshold of “safe harbor” provisions. This chapter will discuss how the courts in the US, EU and China to decide hosting ISPs’ secondary liability under the roof of the “safe harbor” provisions. In the light of “safe harbor” provisions, a hosting ISP who complies with certain requirements can be exempted from paying monetary damages. However, regarding the other kind of reliefs, such as injunction, “safe harbor” provisions cannot immunize hosting ISPs from them. Therefore, even though a hosting ISP fully complies with liability exemption conditions set in “safe harbor” provisions, it may still face liabilities other than paying monetary damages according to the traditional liability rules. Besides, as was mentioned in the end of Chap. 2, when interpreting “safe harbor” provisions, the courts cannot avoid being affected by traditional liability rules, so even though the US, EU and China have reached certain harmonization in the respect of “safe harbor” provisions, in light of case law, the secondary liability rules of hosting ISPs are still diverse in the US, EU and China. This chapter will take a comparative approach to examine the hosting ISPs’ secondary liability for copyright infringement on their platforms in the US, EU and China.