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The Knowledge Standard for ISP Copyright and Trademark Secondary Liability: a Comparative Study on the Analysis of US and EU Laws

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The Knowledge Standard for ISP Copyright and Trademark Secondary Liability: a Comparative Study on the Analysis of US and EU Laws The Knowledge Standard for ISP Copyright and Trademark Secondary Liability: A Comparative Study on the Analysis of US and EU Laws A Thesis Submitted for the Degree of Doctoral of Philosophy in Law By: Mohammad Sadeghi 1002256 School of Law Brunel University London 2013 i Declaration I declare that the work presented in this thesis is my own except where it is stated otherwise. Mohammad Sadeghi i Abbreviations Used DMCA: Digital Millennium Copyright Act ECD: Electronic Commerce Directive ECJ: European Court of Justice Electronic Commerce Directive: Directive 2000/31/ EC of the European Parliament and of the Council of 8 June 2000 on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market UK CDPA: The Copyright, Designs and Patents Act 1988 UK: United Kingdom US: United States of America ii Abstract Holders of rights sue ISPs for copyright and trademark infringement: specifically, for contributory liability through the ISP’s knowledge of user infringement. Knowledge about user infringement has been prevalently recognised as a crucial element of ISPs’ secondary liability, but the approaches concerning the knowledge standard are different in US copyright case law (traditional tort), the US Digital Millennium Copyright Act, the US Lanham Act, US trademark case law, and the EU Electronic Commerce Directive. Their differences have posed questions on the efficacy of the current knowledge standards and case law interpretations to omit legal ambiguities and offer appropriate guidance for tackling issues. This research presents that the US knowledge standards and the ECD knowledge standard apply broad knowledge standards to evaluate ISPs’ knowledge but they differ in terms of their elements and conditions for permitting ISPs and copyright holders to co-exist and combat copyright infringement. US copyright case law, the InWood knowledge standard, and the EU knowledge standard are deficient in terms of offering a suitable notice and take-down regime to reduce the duties of ISPs and to tackle the high risk of an ISP being held liable without knowledge. This is in contrast to the DMCA, which is free from such legal concerns because of its specified notice and take- down regime. Consequently, to fulfil the aims of this research, the following recommendations are made: the US copyright knowledge standard should preserve the broad knowledge standard of the DMCA, subject to implementing a compulsory notice and take-down regime, establishing a special body regarding the notification in section 512, and designing technical criteria for the ‘red flag’ test. In addition, it is recommended that the Lanham Act codify the InWood knowledge standard and the DMCA’s notice and take-down procedures. Besides, it is recommended that the ECD establish a notice and take-down regime similar to that applied by the US DMCA (subject to the above amendments). iii Acknowledgments In the name of God, most merciful, praise be to God, the cherisher and sustainers of the worlds, for without him nothing is possible. This thesis would not been completed without assistance, support and guidance from a number of people. Thus, I would like to express my deepest appreciation and gratitude to these wonderful individuals. To Professor Maurizio Borghi, whose expertise, understanding, and patience, added considerably to my experience. I appreciate his vast knowledge and skill in many areas and he truly made a difference in my life (thank you from deep of my heart. You have and will always inspire me to be from good to better and best among the best). To my loving father and mother, for their support throughout my entire life. Many thanks to Dr. Amir Rezaiee,Mohammad Kalouti and Miss Misaghiee for their kind attention and continuous support. Last but not least, I would like to dedicate my thesis to my loving wife (Najmeh) whose cooperation and patience was admirable during the process of writing thesis; it is a fact that without their kind attention and continuous support, this research would not have been completed. To my loving son (Parsa) who gave me peace and motivation every time by saying “father do your work” and I will reply by saying “I love you so much God may safeguard you so that you may reach the highest star in your life”. iv Table of Contents Declaration ............................................................................................................................ i Abbreviations Used ............................................................................................................... ii Abstract ............................................................................................................................... iii Acknowledgments ............................................................................................................... iv CHAPTER I: Introduction ....................................................................................................... 1 1.1 Research Background ...................................................................................................... 1 1.2 Research Aims and Questions ......................................................................................... 7 1.4 Scope, Limitations, Research Methodology and Hypothesis ............................................ 8 Chapter II: Knowledge Standard Approach, Theory and Epistemology ................................ 13 2.1Knowledge Standard Approach in Secondary Liability .................................................... 13 2.1.1 Strict Liability as Secondary Liability for ISPs for Copyright and Trademark Infringement ......................................................................................................................... 14 2.1.2 Limited Liability as Secondary Liability for ISPs’ Copyright and Trademark Infringement ......................................................................................................................... 15 2.1.2.1Vicarious Liability .................................................................................................. 15 2.1.2.2 Contributory Liability ........................................................................................... 16 2.1.2.3 Inducement Liability ............................................................................................. 17 2.2 Knowledge Standards and Secondary Liability Theories ................................................ 18 2.2.1 Common Theories on Secondary Liability .................................................................... 18 2.2.1.1Formalist Theory and Secondary Liability ............................................................. 19 2.2.1.1.1 Kantianism .................................................................................................... 21 2.2.1.1.2 Aristotle’s ...................................................................................................... 21 2.2.1.1.3 Weinrib’s Theory .......................................................................................... 23 2.2.1.2 Fault Theory ......................................................................................................... 25 2.2.3 Instrument Theory and Secondary Liability ................................................................. 27 2.3 Concept of Knowledge .................................................................................................. 29 2.3.1 Epistemology of Human Knowledge ............................................................................ 30 2.3.2 Machine Knowledge .................................................................................................... 31 2.4 Conclusion ..................................................................................................................... 33 CHAPTER III: Knowledge Standards for ISPs’ Copyright and Trademark Liability in the US .. 35 3.1 Introduction .................................................................................................................. 35 3.2 ISP Knowledge Requirements for Copyright Infringement ............................................ 36 v 3.2.1 Knowledge Standard in Case Law ................................................................................ 36 3.2.1.1 Actual Knowledge ................................................................................................ 37 3.2.1.2 Constructive Knowledge ...................................................................................... 43 3.2.1.3 Appraisal .............................................................................................................. 46 3.2.2 DMCA and Knowledge Requirements .......................................................................... 47 3.2.2.1 Actual knowledge in Section 512 ......................................................................... 50 3.2.2.2 Awareness of Infringement Standard in Section 512 ........................................... 53 3.2.2.3 Interpretations of the DMCA Knowledge Standard in Case Law ......................... 54 3.2.2.3.1 Actual Knowledge ......................................................................................... 54 i. Notification Elements ........................................................................................... 55 ii. Appraisal .............................................................................................................. 64 3.2.2.3.3 Awareness of Infringement Standard ..........................................................
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