Global Cyber Intermediary Liability: A Legal & Cultural Strategy

This Article fills the gap in the debate on fighting cybercrime. It considers the role of intermediaries and the legal and cultural strategies that countries may adopt. Part II.A of this Article examines the critical role of intermediaries in cybercrime. It shows that the intermediaries’ active participation by facilitating the transmission of cybercrime traffic removes a significant barrier for individual perpetrators. Part II.B offers a brief overview of legal efforts to combat cybercrime, and examines the legal liability of intermediaries in both the civil and criminal context and in varying legal regimes with an emphasis on ISPs. Aside from some level of injunctive relief, intermediaries operate in a largely unregulated environment. Part III looks at what we can learn from other countries. The cleanest intermediary country, Finland, and the worst country, Lithuania, were selected in order to explore the causes for the differences between country performances. The section examines the remarkable distinctions between national cultures to explain differences in national cybercrime rates. Part III.A of this Article argues that the criminal code laws do not account for the difference in host and ISP performances between Finland and Lithuania. There are few differences in the codified laws pertaining to cybercrime between these countries. Instead, it is Finland’s cultural and business environments that appear to drive its cybercrime ranking. Part IV suggests reforms to shift a country’s culture to make it less prone to corruption. However, changing a culture takes time so Part IV also proposes a private law scheme in which intermediaries are unable to wave the “flag of immunity,” as they do now. The guiding philosophy for this proposal is that harmed parties should be permitted to recover damages directly from “bad” intermediaries

An empirical study of unfair terms in online auction contracts in the UK: Evidence for the need for better enforcement mechanisms

This paper studies the terms of 28 online auction sites. It uncovers that, in this industry, unfair terms are common. The paper focusses on a small number of clauses but conclusively shows that enforcement in the UK is insufficient. The reasons for this insufficiency are explored and solutions proposed

ISPs’ Duty of Care in Copyright Infringement

This dissertation discussed the ISP’s duty of care in copyright infringement. The duty hereon refers to the ISP’s legal obligation to take care of the influence of the provided service on the protection of others’ copyright. The duty is divided into three sub-categories: the duty of general prevention, the duty of assistance in specific infringement and the duty to deal with repeated infringement. In order to provide a comprehensive and systematic explanation of the duty, four main aspects are logically discussed: the background, the status quo, the justification, and the specific application. In addition to the traditional mechanism of notice and take down, it is asserted that the ISP should play a more active role in dealing with the users’ online infringement. In particular, the ISP should be imposed on a legal obligation to keep neutral actually and to have general control of the infringing activities through their service. Thereby, the application of the filtering technologies should not be refused as a whole, but should be limited from the perspective of the purpose, the scope as well as the efficacy. Accordingly, the fundamental orientation of the Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market is supported by this dissertation. At the same time, it is recommended to adopt the application of the duty of general prevention on the ISPs providing platforms instead of recognizing the service itself as communicating to the public

Recommendation for Mongolia

학위논문 (석사)-- 서울대학교 대학원 : 법과대학 법학과, 2019. 2. 박준석.초록 서비스제공자의 저작권 관련 책임에 관한 비교법적 연구: 몽골을 위한 제안을 위하여 우리는 지금 인터넷 없이는 어려움을 겪는 독특한 환경에 살고 있다. 인터넷은 우리에게 문학 창작 및 배포, 지식 전달 등 다른 많은 활동에 개인적으로 참여할 수 있는 기회를 제공한다. 인터넷 개발 초기 때는 주요 쟁점은 많은 사람들에게 접근성을 최대한 허용하는데 관한 것이었지만 요즘은 보다 안전한 환경을 구축하고 저작권 소유자, 인터넷 사용자 및 인터넷 서비스 공급자인 세가지 다른 이익을 평등하게 보호하는 것을 강화하고 있다. 본 연구에서, 인터넷의 부정적 사용으로 인해 발생하고 있는 명예 훼손, 모욕, 개인 정보의 불법 사용, 저작권침해 등의 여러 사이버 범죄 중에 사이버 환경에서의 저작권침해 문제를 강조하고, 이용자생산콘텐츠와 관련하여 서비스제공자의 책임 또는 책임 면제에 대한 법적 규제를 주제로 삼았다. 서비스제공자의 책임 또는 의무에 관해 저작권법상 생겨난 최근 변화를 반영하기 위해 여러 국가들에서 각자의 저작권법 개정안이 논의되고 있다. 또한 서비스제공자의 책임면제에 대한 규제의 여러 가지 개념이 있으며 많은 학술논문과 기사에서 사이버공간에서의 저작권 침해와 관련하여 사이버 신고접수, 저작권 침해 저작물 및 정보 삭제의 규정의 효과를 평가했다. 그러나 이 문제에 대한 공통된 입장은 없으며 법적 환경에서 저작권 보유자, 인터넷 사용자 및 인터넷 서비스 공급자의 이익을 균형 잡는데 여전히 어려움을 겪고 있다. 본 연구는 사이버공간에서의 저작권 침해에 관련된 국제법 및 규제 경험의 조사를 바탕으로 몽골은 (1) 현행 저작권법을 개정하고 인터넷 서비스 공급자에 대한 규제를 도입할지 여부, (2) 미국과 한국의 경험을 통해 온라인 저작권 침해에 관한 다른 국가의 경험을 어떻게 배우고 반영 할 수 있는지, (3) 지금의 저작권 시스템에 어느 정도까지 합법적 이식을 할 수 있는지 탐구하기 위한 것이다. 인터넷은 더 이상 영토 경계에 묶여 있지 않기 때문에 저작권 침해 문제는 모든 국가에 적용되므로 이 문제에 대해 다른 국가에 대한 다양한 접근법을 조사 또는 연구하면서 비교하는 것이 매우 중요하다. 본 연구의 이러한 목적을 위해, 이 논문에서는 가장 대표적인 국가인 미국, 그리고 미국과 유럽의 접근법을 일부씩 채용한 한국의 각 경험에 대한 고찰을, 주로 서비스제공자의 책임제한 및 그런 제한의 전제요건으로서 법적의무를 중심으로 진행하였다. 이 연구의 3 장에서는 각 국가의 인터넷 서비스 제공 업체와 관련된 법적 소송 및 법원에서 판결이 난 소송 사건을 조사하였다. 인터넷 서비스제공자의 책임의 대한 문제는 그들의 활동과 제공하는 서비스를 통해 직접 또는 간접적으로 저작권 보유자의 독점적 권리를 침해하는 콘텐츠를 통해 생성된다. 따라서 사용자생산콘텐츠의 직접과 간접적 법적 책임의 성격을 연구하는 것이 중요하다. 이와 관련 하여 연구의 첫 번째 장에서 작성된 이용자가 만든 콘텐츠의 법적 개념, 두 번째 장에서 직접과 간접적 책임의 대한 개념을 간단하게 살펴 봤다. 이 연구의 5 장은 현재 몽골의 법적 규제 체계를 해석하고 현재 규제 체제의 몇 가지 단점을 제시하였다. 결론적으로 이 논문은 지금 까지 몽골에서 온라인 저작권 침해에 대한 인터넷 중개자의 2차적 책임에 관한 문제를 제기하는 사례에 직면하지는 않았지만, 가까운 미래에 몽골 정부가 책임제한 법제를 채택 할 필요성이 높다고 결론 지었다. 또한, 저작권 침해에 대한 저작권부여자의 요청에 따라 저작권 침해 콘텐츠를 삭제하는 것과 관련된 투명하고 효과적인 법적 조치를 마련하는 것을 적극적으로 고려할 필요가 있다고 본다. 주요어: 이용자 생산 콘텐츠, 간접 책임, 사이버 공간 저작권 침해, 인터넷 서비스 제공 업체, 저작권 제한, 지적 재산권 학번: 2016-22111Abstract A Comparative Study on Intermediary Liabilities for Copyright Infringement: Recommendation for Mongolia Itgeltugs Altansukh College of Law The Graduate School of Seoul National University This is such an extraordinary period in the history of humankind, giving nearly all people a self-thought that I would no longer live without Internet. It is undeniable to say that Internet gives us a bundle of chances and opportunities to engage directly in the creation of works and dissemination of knowledge. At the same time, it has become a home for variety of illegal and misappropriate conducts in a way that our previous generations could not even imagine. While at first it was the main concern how to proliferate the Internet as reachable as possible to many people, nowadays the main concerns towards Internet are how we could make Internet a safer environment for all of us, and how to strike a fair balance among legal interests of copyright holders, internet users and online intermediaries. Having noted that there are many other aspects affected by the misuse of Internet, including online defamation, misuse of personal information, cybercrimes, etc., this thesis highlights the issue of copyright infringement in the digital world, and aims to study the legal regime of intermediary liabilities for copyright infringement. More narrowly, many countries have considered amending their copyright law as to include recent developments made to the copyright world with respect to online intermediaries liabilities and responsibilities for copyright infringement. In addition, there have been varying viewpoints as to the usefulness of the adoption of statutory immunity for intermediary liabilities, and many literature studies have evaluated the effectiveness of notice and takedown procedures in relation to the conducts of online copyright infringement. Yet, there is no harmonization over these issues and many countries still face hurdles in the solution on finding a fair balance between the competing rights of copyright owners, intermediaries and individuals. With respect to this global trend, this thesis aims at studying (1) whether Mongolia needs to revise its current copyright law and adopt the limitation to online intermediaries liabilities(2) how it can learn and reflect other countries experiences regarding online copyright infringement, namely from the U.S. and South Korean experiencesand (3) to what extent legal transplantation could be made to the current copyright system. What is more, as Internet is more like borderless and online copyright infringement does not leave any country outside the flow, it is crucial to study different approaches of different countries addressing same particular issue. For the purpose of this thesis, it will offer an insight to the experience of the United States as a main representative country, and of the Republic of Korea, as a country with a mixed legal environment reflecting both the United States and European approaches, by mainly focusing on the legal framework of limitation of intermediary liabilities and statutory obligations as prerequisite condition to the limitation. Chapter 3 of the thesis provides a study of each countrys legal framework and case studies in relation to the online intermediaries respectively. The issue of intermediary liability arises because either of their own activities or the users contents appeared on their platforms that prejudice the copyright holders exclusive rights. Hence, it is worth to study the user-generated content from a copyright perspective and the legal characteristics of allegation of secondary liability. For this reason, Chapter 1 of the thesis will touch upon the concept of user-generated content from a copyright perspective and the Chapter 2 of the thesis will discuss the legal concept of secondary liability in brief. Chapter 5 of the thesis studies and analyzes the current copyright system of Mongolia and reveal some shortcomings regarding the current regulation as measure against online copyright infringement. All in all, this thesis concludes that even though Mongolia has not yet faced with any challenging cases that arise a question of secondary liability of an internet intermediary for online copyright infringement, there is high prospect of the necessity of adopting a safe harbor regime in the near future. Furthermore, along with the safe harbor regime, a clear and effective legal framework for the notice and takedown of unauthorized works is highly sought for consideration. Keyword: user-generated content, secondary liability, online copyright infringement, internet intermediary, copyright limitations and exceptions, intellectual property Student Number: 2016-22111TABLE OF CONTENTS INTRODUCTION 1 GENERAL ASPECTS OF USER-GENERATED CONTENT 1.1. The Notion of User-Generated Content 1.1.1. The Definition of a User and the User-Generated Content 1.1.2. Types of User-Generated Content in the Copyright Context 1.2. Users Right 1.3. The Current State of User-Generated Content in the Legal Context 1.4. Conclusion to the Chapter 2 GENERAL ASPECTS OF INTERMEDIARY LIABILITIES 2.1. Copyright Infringement 2.1.1. Direct and Indirect Infringement 2.1.2. Indirect Infringement in the United States i) Vicarious Infringement ii) Contributory Infringement iii) Inducement Theory 2.1.3. Indirect Infringement in China 2.2. Internet Intermediary 2.3. Secondary Liability of Internet Intermediaries 3 A COMPARATIVE STUDY ON INTERMEDIARY LIABILITIES 3.1. The Legal Framework of Intermediary Liabilities in the United States 3.1.1. The Necessity to Adopt the Digital Millennium Copyright Act (DMCA) 3.1.2. Regulations of the DMCA 3.1.3. Eligibility Requirements for Safe Harbor Protection 3.1.4. UGC Service Providers Safe Harbor under 512(c) 3.1.5. Notable Cases i) Viacom Intl, Inc. v. YouTube, Inc. ii) Capitol Records, LLC v. Vimeo, LLC iii) Lenz v. Universal Music Corp. iv) BMG Rights Management LLC v. Cox Communications, Inc. 3.1.6. Conclusion to the U.S. Part 3.2. The Legal Framework of Intermediary Liabilities in Korea 3.2.1. Statutory Regulations regarding Intermediary Liabilities for Copyright Infringement 3.2.2. Online Service Providers Liability under the Korean Copyright Act 3.2.3. Government and Public Institutions in charge of Online Copyright Infringement 3.2.4. Notable Cases regarding the Online Service Providers Liability 3.2.5. Conclusion to the Korean Part 4 THE LEGAL FRAMEWORK OF ONLINE COPYRIGHT PROTECTION IN MONGOLIA 4.1. Legal System of Mongolia and Copyright Protection 4.1.1. The Mongolian Legal System 4.1.2. Intellectual Property Protection in Mongolia 4.1.3. Law of Mongolia on Copyright and Related Rights 4.1.4. Current Status of Enforcement of Copyright Protection 4.2. Regulations regarding Internet Service Providers 4.2.1. Under the Law on Copyright and Related Rights 4.2.2. General Terms and Conditions of Digital Content Service Regulation 4.3. Secondary Liability Concept in Mongolia 4.3.1. Under Civil Law 4.3.2. Under Criminal Law 4.4. Conclusion to the Chapter 5 RESEARCH RESULT, RECOMMENDATION AND CONCLUSION 5.1. Research Result 5.1.1. Necessity of Devising a Regime of Intermediary Liability in the Mongolian Copyright System i. The Regime of Intermediary Liability in Mongolia on an International Scale of Global Trend ii. Risk of Legal Action Against ISPs for a Third Partys Direct Copyright Infringement 5.1.2. Advantages over Disadvantages of Adopting a Conditional Immunity Regime for ISPs 5.2. Recommendations 5.2.1. Adoption of Vertical Approach 5.2.2. Abolishment of Digital Copyright Regulation 5.2.3. Adoption of a Clear and Transparent Notice and Takedown Scheme 5.2.4. Other Possible Aspects to Consider from the U.S. and South Korean Experiences 5.3. Conclusion BIBLIOGRAPHY ABSTRACT IN KOREANMaste

Fashion Forward: The Need for a Proactive Approach to the Counterfeit Epidemic

In the last two decades, the overall activity of the counterfeit market has expanded and risen 10,000 percent. This dramatic shift corresponds to growth of the Internet, which has unified the fascination of obtaining cheap, illegitimate goods with the efficiency of a mouse click. With the expected continued inflation of the counterfeit market comes a host of new concerns, namely, how to determine who is responsible for the distribution of these knockoffs, and who should be ordained to limit them in the marketplace. In both the United States and the European Union, however, outdated laws produce a mélange of inadequate solutions to these issues. This Note examines these burden structures currently in place by the United States and EU States, and argues that the laws are insufficient, from both a cost and a pragmatic perspective. It concludes, therefore that the increase in the global counterfeit market demands a heightened standard of care from intermediaries than currently required by law and practice

Making the private public: Regulating content moderation under Chinese law

With the expansion of digital economy, tackling illegal online content is an increasingly challenging task. China implemented a dual-track legal mechanism on content moderation, whereby it exempts general monitoring obligations of intermediaries under private law while imposing monitoring obligations under public law. In recent years, major platforms exercise much stronger control over flow of information, regardless of more serious consequences that impact the fundamental rights of users. Meanwhile, a series of Chinese court rulings have shown that these divergent attitudes towards monitoring obligations under public and private law have given rise to legal conflicts that may deprive intermediaries of their legitimate immunity, undermining the stability and efficiency of the safe harbor rule. Furthermore, the lack of adequate legal safeguards against the risk of abusing automatic content filtering technology might transform the internet into a digital panopticon. To redraw boundaries between monitoring obligations under private and public law, future Chinese legislation should not only provide clearer clarification on the scope of monitoring, but also include a provision prohibiting general monitoring obligations in private law. To provide legal predictability for affected parties and flexibility for future technological developments, a Good Samaritan clause should be introduced in Cybersecurity Law by learning from the substance of Article 7 of the DSA

THE NEW RIGHT OF COMMUNICATION THROUGH THE INFORMATION NETWORK IN THE PEOPLE’S REPUBLIC OF CHINA

While China has not joined the World Intellectual Property Organisation (WIPO) Copyright Treaty (WCT) or the WIPO Performances and Phonograms Treaty (WPPT), China amended its Copyright Law in 2001 in accordance with Article 8 of the WCT and Articles 10 and 14 of the WPPT. As a result, a new exclusive right of communication through the information network (hereafter referred to as the ‘right of network communication’) was introduced into the Copyright Law 1990 (amended 2001) for the benefit of copyright owners and performers and producers of sound and video recordings. The adoption of the right of network communication has raised the level of copyright protection as required by Article 8 of the WCT and Articles 10 and 14 of the WPPT. Consequently, uploading a work or recording onto a website for unauthorised distribution through the Internet will infringe the copyright owner, producer and performer’s (if the recording embodies the performance) right of network communication, unless the distribution constitutes fair use. However, since the provision on the right of network communication in the Copyright Law has a liberal application, more needs to be done to properly apply this right in complicated cases. In addition, the new technologies and business models appearing in China bring new challenges which call for clarification on the meaning of the network communication right, and either creating or improving provisions in the Copyright Law. For example, when a website provides hyperlinks to infringing MP3 files, or ‘pirated’ sites containing a number of infringing files, will the website operator be directly responsible for infringing the right of network communication, or for indirectly contributing to the infringing act done by the linked sites? Moreover, if the copyright owner sues the website providing the hyperlinks, but does not give a written notice warning it of the infringing nature of the linked files or sites in advance, can the court determine that the website has actual knowledge of the infringing act occurring on the linked site? There are no clear answers to these questions in the Copyright Law. To deal with these new challenges the State Council drated the Regulation on the Protection of the Right of Communication through the Information Network (‘Communication Right Regulation’),1 and the Supreme Court is trying to give interpretations on the right of network communication in specific cases. Nevertheless there are still disputes over the application of this new right. The competing interest groups, which include major record labels and the Internet industry, have opposing views, which makes it difficult for new legislation and judicial interpretation. This paper explores the nature of the new right of network communication in China and discusses its relationship with other exclusive rights, in particular the right of reproduction and the right of distribution. This paper also identifies the hotly debated questions in relation to applying the right of network communication and attempts to provide answers. In addition, the paper provides a proposal to introduce specific provisions of indirect copyright infringement and insights on the judicial test that should be applied by the courts in determining an act of indirect infringement

THE NEW RIGHT OF COMMUNICATION THROUGH THE INFORMATION NETWORK IN THE PEOPLE’S REPUBLIC OF CHINA

While China has not joined the World Intellectual Property Organisation (WIPO) Copyright Treaty (WCT) or the WIPO Performances and Phonograms Treaty (WPPT), China amended its Copyright Law in 2001 in accordance with Article 8 of the WCT and Articles 10 and 14 of the WPPT. As a result, a new exclusive right of communication through the information network (hereafter referred to as the ‘right of network communication’) was introduced into the Copyright Law 1990 (amended 2001) for the benefit of copyright owners and performers and producers of sound and video recordings. The adoption of the right of network communication has raised the level of copyright protection as required by Article 8 of the WCT and Articles 10 and 14 of the WPPT. Consequently, uploading a work or recording onto a website for unauthorised distribution through the Internet will infringe the copyright owner, producer and performer’s (if the recording embodies the performance) right of network communication, unless the distribution constitutes fair use. However, since the provision on the right of network communication in the Copyright Law has a liberal application, more needs to be done to properly apply this right in complicated cases. In addition, the new technologies and business models appearing in China bring new challenges which call for clarification on the meaning of the network communication right, and either creating or improving provisions in the Copyright Law. For example, when a website provides hyperlinks to infringing MP3 files, or ‘pirated’ sites containing a number of infringing files, will the website operator be directly responsible for infringing the right of network communication, or for indirectly contributing to the infringing act done by the linked sites? Moreover, if the copyright owner sues the website providing the hyperlinks, but does not give a written notice warning it of the infringing nature of the linked files or sites in advance, can the court determine that the website has actual knowledge of the infringing act occurring on the linked site? There are no clear answers to these questions in the Copyright Law. To deal with these new challenges the State Council drated the Regulation on the Protection of the Right of Communication through the Information Network (‘Communication Right Regulation’),1 and the Supreme Court is trying to give interpretations on the right of network communication in specific cases. Nevertheless there are still disputes over the application of this new right. The competing interest groups, which include major record labels and the Internet industry, have opposing views, which makes it difficult for new legislation and judicial interpretation. This paper explores the nature of the new right of network communication in China and discusses its relationship with other exclusive rights, in particular the right of reproduction and the right of distribution. This paper also identifies the hotly debated questions in relation to applying the right of network communication and attempts to provide answers. In addition, the paper provides a proposal to introduce specific provisions of indirect copyright infringement and insights on the judicial test that should be applied by the courts in determining an act of indirect infringement