Internet Intermediaries and the Law Applicable to Intellectual Property Infringements

The coordination between territoriality restricted intellectual property rights and the potential global reach of Internet activities has been the focus of significant attention in recent years. The liability of Internet intermediaries offering potentially global services that may facilitate infringements of intellectual property rights by others in multiple countries poses a particular challenge in that regard. At a substantive law level, significant differences remain between jurisdictions regarding secondary liability for intellectual property rights infringements and safe harbor provisions for Internet intermediaries. The present article discusses the conflict of laws aspects of the liability of Internet intermediaries in light of the recent international efforts to adopt soft law provisions on intellectual property and private international law.

Welcome to the Jungle: The Liability of Internet Intermediaries for Privacy Violations in Europe

In Europe, roughly three regimes apply to the liability of Internet intermediaries for privacy violations conducted by users through their network. These are: the e-Commerce Directive, which, under certain conditions, excludes them from liability; the Data Protection Directive, which imposes a number of duties and responsibilities on providers processing personal data; and the freedom of expression, contained inter alia in the ECHR, which, under certain conditions, grants Internet providers several privileges and freedoms. Each doctrine has its own field of application, but they also have partial overlap. In practice, this creates legal inequality and uncertainty, especially with regard to providers that host online platforms and process User Generated Content.

Editorial [Special Issue]

This special issue of the International Journal of Technology Policy and Law considers recent developments in the reconfiguration of communication regulation to account for the impact of media convergence. It is readily apparent that media worldwide are going through a series of transformations, associated with the rise of the internet, user-created content and social media. The papers in the collection draw upon legal and policy developments in Australia, the European union and South Korea, and consider such issues as public participation in media policy and regulation, civic media governance for online platforms, the future copyright laws, the roles and responsibilities of internet intermediaries, and regulatory frameworks for internet protocol television (IPTV).

Wikipedia, collective authorship, and the politics of knowledge

This chapter considers the legal ramifications of Wikipedia, and other online media, such as the Encyclopedia of Life. Nathaniel Tkacz (2007) has observed: 'Wikipedia is an ideal entry-point from which to approach the shifting character of knowledge in contemporary society.' He observes: 'Scholarship on Wikipedia from computer science, history, philosophy, pedagogy and media studies has moved beyond speculation regarding its considerable potential, to the task of interpreting - and potentially intervening in - the significance of Wikipedia's impact' (Tkacz 2007). After an introduction, Part II considers the evolution and development of Wikipedia, and the legal troubles that have attended it. It also considers the establishment of rival online encyclopedia - such as Citizendium set up by Larry Sanger, the co-founder of Wikipedia; and Knol, the mysterious new project of Google. Part III explores the use of mass, collaborative authorship in the field of science. In particular, it looks at the development of the Encyclopedia of Life, which seeks to document the world's biodiversity. This chapter expresses concern that Wiki-based software had to develop in a largely hostile and inimical legal environment. It contends that copyright law and related fields of intellectual property need to be reformed in order better to accommodate users of copyright material (Rimmer 2007). This chapter makes a number of recommendations. First, there is a need to acknowledge and recognize forms of mass, collaborative production and consumption - not just individual authorship. Second, the view of a copyright 'work' and other subject matter as a complete and closed piece of cultural production also should be reconceptualised. Third, the defense of fair use should be expanded to accommodate a wide range of amateur, peer-to-peer production activities - not only in the United States, but in other jurisdictions as well. Fourth, the safe harbor protections accorded to Internet intermediaries, such as Wikipedia, should be strengthened. Fifth, there should be a defense in respect of the use of 'orphan works' - especially in cases of large-scale digitization. Sixth, the innovations of open source licensing should be expressly incorporated and entrenched within the formal framework of copyright laws. Finally, courts should craft judicial remedies to take into account concerns about political censorship and freedom of speech.

The AOL Huffington Post merger

This article examines the merger between AOL and the Huffington Post. The broader issues around the merger will be investigated, especially the implication for rights, in particular free expression, and their conditions for exercise and actual exercise online. One major issue is that of the status of user-generated content and how the existing legal regime reflects the ethical concerns of users over how their content, data and information is used and commodified by the for-profit Internet intermediaries and platforms, especially when they start to merge and form concentrations. The extent to which the current legal regimes, especially human rights, deal with these problems in an adequate fashion will be assessed, along with the presentation of some suggestions of alternative approaches which may be more effective in practice.

The governance of online expression in a networked world:free-speech, surveillance and censorship

In recent years, we have witnessed the mushrooming of pro- democracy and protest movements not only in the Arab world, but also within Europe and the Americas. Such movements have ranged from popular upheavals, like in Tunisia and Egypt, to the organization of large- scale demonstrations against unpopular policies, as in Spain, Greece and Poland. What connects these different events are not only their democratic aspirations, but also their innovative forms of communication and organization through online means, which are sometimes considered to be outside of the State’s control. At the same time, however, it has become more and more apparent that countries are attempting to increase their understanding of, and control over, their citizens’ actions in the digital sphere. This involves striving to develop surveillance instruments, control mechanisms and processes engineered to dominate the digital public sphere, which necessitates the assistance and support of private actors such as Internet intermediaries. Examples include the growing use of Internet surveillance technology with which online data traffic is analysed, and the extensive monitoring of social networks. Despite increased media attention, academic debate on the ambivalence of these technologies, mechanisms and techniques remains relatively limited, as is discussion of the involvement of corporate actors. The purpose of this edited volume is to reflect on how Internet-related technologies, mechanisms and techniques may be used as a means to enable expression, but also to restrict speech, manipulate public debate and govern global populaces.

The role of intermediaries in the implementation and development of asynchronous rural access

In Orissa state, India, the DakNet system supports asynchronous Internet communication between an urban hub and rural nodes. DakNet is noteworthy in many respects, not least in how the system leverages existing transport infrastructure. Wi-Fi transceivers mounted on local buses send and receive user data from roadside kiosks, for later transfer to/from the Internet via wireless protocols. This store-and-forward system allows DakNet to offer asynchronous communication capacity to rural users at low cost. The original ambition of the DakNet system was to provide email and SMS facilities to rural communities. Our 2008 study of the communicative ecology surrounding the DakNet system revealed that this ambition has now evolved – in response to market demand – to the extent that e-shopping (rather than email) has become the primary driver behind the DakNet offer.

Privacy v IP Litigation : preliminary third party discovery on the Internet

The enforcement of Intellectual Property rights poses one of the greatest current threats to the privacy of individuals online. Recent trends have shown that the balance between privacy and intellectual property enforcement has been shifted in favour of intellectual property owners. This article discusses the ways in which the scope of preliminary discovery and Anton Piller orders have been overly expanded in actions where large amounts of electronic information is available, especially against online intermediaries (service providers and content hosts). The victim in these cases is usually the end user whose privacy has been infringed without a right of reply and sometimes without notice. This article proposes some ways in which the delicate balance can be restored, and considers some safeguards for user privacy. These safeguards include restructuring the threshold tests for discovery, limiting the scope of information disclosed, distinguishing identity discovery from information discovery, and distinguishing information preservation from preliminary discovery.

The responsibilities of intermediaries

This paper addresses the liability of intermediaries for copyright infringement, defamation and for engaging in misleading and deceptive conduct. It explores the issue of whether it is possible to develop a legitimate, decentralised copyright graduated response scheme in Australia.

The responsibility of intermediaries: Emerging IP protection schemes, from Content ID, to three-strikes and follow-the-money

The only effective and scalable way to regulate the actions of people on the internet is through online intermediaries. These are the institutions that facilitate communication: internet service providers, search engines, content hosts, and social networks. Governments, private firms, and civil society organisations are increasingly seeking to influence these intermediaries to take more responsibility to prevent or respond to IP infringements. Around the world, intermediaries are increasingly subject to a variety of obligations to help enforce IP rights, ranging from informal social and governmental pressure, to industry codes and private negotiated agreements, to formal legislative schemes. This paper provides an overview of this emerging shift in regulatory approaches, away from legal liability and towards increased responsibilities for intermediaries. This shift straddles two different potential futures: an optimistic set of more effective, more efficient mechanisms for regulating user behaviour, and a dystopian vision of rule by algorithm and private power, without the legitimising influence of the rule of law.

Crowdsourcing innovation intermediaries functions

Open innovation is a hot topic in innovation management. Its basic premise is open up the innovation process. The innovation process, in general sense, may be seen as the process of designing, developing and commercializing a novel product or service to improve the value added of a company. The development of Web 2.0 tools facilitates this kind of contributions, opening space to the emergence of crowdsourcing innovation initiatives. Crowdsourcing is a form of outsourcing not directed to other companies but to the crowd by means of an open call mostly through an Internet platform. Innovation intermediaries, in general sense, are organizations that work to enable innovation, that just act as brokers or agents between two or more parties. Usually, they are also engaged in other activities like inter-organizational networking and technology development and related activities. A crowdsourcing innovation intermediary is an organization that mediates the communication and relationship between the seekers – companies that aspire to solve some problem or to take advantage of any business opportunity – with a crowd that is prone to give ideas based on their knowledge, experience and wisdom. This paper identifies and analyses the functions to be performed by an intermediary of crowdsourcing innovation through grounded theory analyses from literature. The resulting model is presented and explained. The resulting model summarizes eight main functions that can be performed by a crowdsourcing process, namely, diagnoses, mediation, linking knowledge, community, evaluation, project management, intellectual property governance and marketing and support. These functions are associated with a learning cycle process which covers all the crowdsourcing activities that can be realized by the broker.

A internet como ferramenta para venda de veículos: o caso Vitória Webcar

A possibilidade de interagir em tempo real com o consumidor, ao contrário dos monólogos que normalmente caracterizam os tradicionais meios de marketing, alterou drasticamente o jeito como o Customer Service pode ser oferecido, pois permite pesquisas e compras de produtos e serviços on-line, o que representa um maior conforto para o homem contemporâneo, cujo tempo é bem escasso. O mercado representa um papel central na economia de qualquer nação, facilitando a troca de informações, bens, serviços e pagamentos, além de criar valores econômicos para compradores, vendedores, intermediários e para a sociedade de modo geral. Os mercados provêem a infra-estrutura física que permite que as transações entre os compradores e os vendedores ocorram. Dessa forma, entende-se que Mercado e Negociação eletrônica são especializações dos conceitos gerais de Mercado e Negociação. O uso de meios eletrônicos e, mais especificamente, o uso da Internet como recurso para promover o comércio, tem revolucionado todas as formas de comercialização existentes, promovendo o surgimento de novos tipos de mercados eletrônicos, os mercados baseados em Internet. Com tais vantagens, os mercados eletrônicos geram novas oportunidades de negócios, proporcionam novas estratégias para se atingir o consumidor, o fornecedor e os intermediários que estejam dispostos a somar valores na integração cliente/fornecedor. Mercados eletrônicos melhoram as informações compartilhadas entre compradores e fornecedores e ajudam a reduzir o custo de logística permitindo promoções rápidas, entregas imediatas e inventários reduzidos. É a infra-estrutura da informação substituindo sistemas de distribuição física. Foi, portanto, sobre esta temática que buscou-se desenvolver todo o trabalho de pesquisa, enfocando-se um caso real: Vitória Web Car, por ser uma organização que direcionou o seu foco para a qualidade dos serviços, como base para o seu crescimento e diferenciação no mercado do varejo virtual brasileiro.

Virtues and Perils of Anonymity: Should Intermediaries Bear the Burden?

On October 10, 2013, the Chamber of the European Court of Human Rights (ECtHR) handed down a judgment (Delfi v. Estonia) condoning Estonia for a law which, as interpreted, held a news portal liable for the defamatory comments of its users. Amongst the considerations that led the Court to find no violation of freedom of expression in this particular case were, above all, the inadequacy of the automatic screening system adopted by the website and the users’ option to post their comments anonymously (i.e. without need for prior registration via email), which in the Court’s view rendered the protection conferred to the injured party via direct legal action against the authors of the comments ineffective. Drawing on the implications of this (not yet final) ruling, this paper discusses a few questions that the tension between the risk of wrongful use of information and the right to anonymity generates for the development of Internet communication, and examines the role that intermediary liability legislation can play to manage this tension.

Antitrust, Regulation and the Neutrality Trap: A plea for a smart, evidence-based internet policy. CEPS Special Report No. 104/April 2015

When they look at Internet policy, EU policymakers seem mesmerised, if not bewitched, by the word ‘neutrality’. Originally confined to the infrastructure layer, today the neutrality rhetoric is being expanded to multi-sided platforms such as search engines and more generally online intermediaries. Policies for search neutrality and platform neutrality are invoked to pursue a variety of policy objectives, encompassing competition, consumer protection, privacy and media pluralism. This paper analyses this emerging debate and comes to a number of conclusions. First, mandating net neutrality at the infrastructure layer might have some merit, but it certainly would not make the Internet neutral. Second, since most of the objectives initially associated with network neutrality cannot be realistically achieved by such a rule, the case for network neutrality legislation would have to stand on different grounds. Third, the fact that the Internet is not neutral is mostly a good thing for end users, who benefit from intermediaries that provide them with a selection of the over-abundant information available on the Web. Fourth, search neutrality and platform neutrality are fundamentally flawed principles that contradict the economics of the Internet. Fifth, neutrality is a very poor and ineffective recipe for media pluralism, and as such should not be invoked as the basis of future media policy. All these conclusions have important consequences for the debate on the future EU policy for the Digital Single Market.

Property and casualty insurance companies, their role as financial intermediaries

Mode of access: Internet.