How_effective_are_policies_which_increas

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Ivan Rainovski
BA essay
Cybercrime
Bastiaan Leeuw
Number of Words: 8670
Cybercrime
How effective are policies which increase the liability of ISPs for third party copyright
infringements?

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Table of Contents:
Introduction ………………………………………………………..………….p. 4
Chapter 1: Cybercrime a new frontier………………………………...………..p. 4
Part 1: Computers as the target of the offence……………………..….p. 6
Viruses ……………………………………………………..…p. 6
Worms………………………………………………………...p. 6
Logic Bombs………………………………………………….p. 7
Trojan horses……………………………………………….....p. 7
Distributed Denial of services (DDoS) attacks……………….p. 7
Part 2: Traditional crimes……………………..…………………….....p. 8
Copyright infringements……………………………………...p. 8
Child Pornography…………/………………………………..p. 9
Part 3: Problems with regulating Cybercrime………………………...p. 10
Chapter 2: Cybercrimes Third parties…………………………………………p. 12
Part 1: Internet Service Providers (ISPs)……………………………...p. 12
YouTube……………………………………………….…......p. 15
Copyright issues……………………………………………...p. 16
YouTube protection…………………………………….…….p. 17
Part 2: Cases and Legal Regimes……………………………………..p. 18
United States…………………………………………………p. 18
The Digital Millennium Copyright Act (DCMA).p. 19
Betamax case……………………………………...…p. 21
Viacom v YouTube………………………………….p. 22
Io Group Inc v Veoh Networks Inc……………….....p. 22
European Union and the E-Commerce Directive…..………..p. 23
France………………………………………..……...p. 24
Italy…………………………………………..….…..p. 25
Germany………………………………………...…..p. 25
Chapter 3: Effectiveness of Copyright policies……………………………….p. 27
Part 1: Reduction of copyright infringement.………………………...p. 29
Part 2: Maximizing the size of the legitimate market………………p. 29

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Part 3: Encouraging creation and dissemination of cont……………p. 31
Conclusion…………………………………………………………………...p. 32
Bibliography…………………………………………………………………p. 34

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Introduction:
The internet has become a powerful tool for expression of today’s generations. It
is a place where sharing original works has become easy and accessible for almost
everyone, and at the same time a place where discussion can occur over existing
works.1 It has further opened a new market, and can be seen as a growing sector
of economy.2 Along with new business opportunities, new opportunities have
arisen for the crime sector. Computers provided easier means for offenders to
commit illegal activities much faster and with lower financial investments.3 This
paper will look at one specific infringement, namely copyright infringements. It
will examine the effectiveness of copyright policies which increase the liability of
Internet Service Providers with regards to third party copyright infringements.
This paper will assess the effectiveness of such policies by examining three
specific aspects of copyright rules: (i) reducing copyright infringements, (ii)
increasing the size of the legitimate market, and (iii) encouraging the creation and
dissemination of future content.
Chapter 1 of this paper will give a brief description of the types of cybercrime. As
well as some of the problems that policy makers are faced with when regulating
cyberspace. Following in Chapter 2 Internet Service Providers will be discussed
and YouTube, as the main subject of this paper, will be further introduced. In part
two of the same chapter the legal regimes under which YouTube functions will be
discussed. The final chapter of this paper will attempt to assess the effectiveness
of the policies employed in the different regimes discussed by using the three
characteristics of copyright rules.
Chapter 1: Cybercrime a new frontier
The new millennium brought a lot of changes both in the social and technological
spheres. The ILoveYou worm and the denial of service attacks on services like
Yahoo, eBay and other websites showed the emergence of a new type of crime –
cybercrime.4 From its early emergence cybercrime has grown exponentially. 1988
1 Hunt 2007 p. 4
2 Sternburg and Schreurs 2013
3 Katyal 2001 p. 1029
4 Katyal 2001 p.1005

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saw somewhere around six security incidents recorded over a computer. This
number grew to 8000 in 1999. Similar in 2000 the Department of Defence of the
United States confirmed more than 22,000 attacks on their computers.5
Cybercrime is used as an umbrella term which covers all sorts of crimes
committed with a computer. It also refers to the use of a computer to facilitate or
carry out a certain criminal offence. This can in turn be subdivided into two
groups.6
Examples of cybercrimes include anything from Trojan horses to torrenting of
files to financial crimes or the distribution of illegal content like child
pornography.7 A description of some of the forms of cybercrime is needed in
order to get a better understanding their specific characteristics.
The first form is when a computer is the subject of the attack, this group we can
further subdivide into: unauthorized access to computer files and/or programs,
distribution of those files and/or programs, and finally theft of an electronic
identity.8 The most popular ways of committing those crimes is by the use of
viruses, worms, Trojan horses, denial-of-service attacks (DDOS) and logic
bombs.9
A second major group is where the computer is used to facilitate or carry out a
traditional offence. Examples include distribution of child pornography, or
distribution of copyrighted material like songs and movies. Further, a high level of
white-collar crime cases use computers to facilitate their offences.10 Already in
the early 1990s reports sprang up describing computer crime as the main tool of
white-collar criminals.11 In this second grouping computers are used as a tool to
speed up the process of carrying out a traditional offence.12
5 Katyal 2001 p.1005
6 Ibid
7 Ibid p. 1005
8 Ibid p. 1014
9 Ibid p. 1024
10 Ibid p. 1015
11 Ibid p. 1017
12 Ibid p. 1015

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Part 1: Computers as the target of the offence
We will now turn to the first group where the computer is the target of the
offence. Some brief descriptions of the most popular crimes in that group will be
given. Following which we will turn to the second group where the computer is
used as a tool to commit a traditional crime, where a brief explanation of some of
those crimes will be provided.
1.1 Viruses
First we will mention viruses. A virus is a program that modifies the host
computer software in order to replicate exponentially. Once infected the system
can transfer the virus to other computers either vie internet, direct computer
connection, or even a USB stick. All that is required for the virus to replicate on
other systems is some form of transfer of data. How harmful a virus program is
depends on the inner code of the virus itself.13 A famous example of a virus is the
Melissa virus, which in 1999 infected more than one hundred Fortune 1000
companies.14 The most expensive virus up to date and the most devastating was
MyDoom.15 It caused over $38 billion dollars in damages and in addition created
network openings which allowed attacking computers to be able to access the host
system.16
1.2 Worms
Worms are similar to viruses in that they both self-replicate once placed on a host
system. The distinction in this case is that where viruses require human action in
order to replicate, examples would include downloading a file from an e-mail,
worms require only a computer network and no human activity to self-replicate. A
famous example was the worm created by the Philippines students called the
ILoveYou worm.17 Due to the weak lack of laws concerning cybercrime –
namely, viruses or hacking – the case against the creators of the ILoveYou was
13 Katyal 2001 p.1024
14 Ibid p.1025
15 Haury 2012
16 Ibid 2012
17 Katyal 2001 p. 1025

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dropped.18 Another famous example is the Morris Worm. Created by a student at
Cornell in 1988 its one of the first worms to ever cause monetary damages
ranging from 10 to 100 million dollars.19
1.3 Logic Bombs
A logic bomb contains a set of instructions which will be executed at a certain
time and under certain conditions.20 Those instructions can be of malicious nature
and can lie hidden either in software or hardware. Furthermore, it can be used as a
tool to facilitate real space attacks, like shutting down a security system for
example.21 Logic bombs don’t necessarily have to be malicious. Examples of
those are trial programs where after a certain period of time the program cannot be
accessed by the user.
1.4 Trojan horses
Trojan horses, on the other hand, come masked as a program which performs a
certain useful function. However, they also contain malicious hidden code. This
code can provide unauthorized access to a computer network from an outside
user, or introduce a malware program to the system.22 A famous example of a
Trojan horse is the Vundo Trojan. Known for downloading files from the host
system and also causing pop-up advertisements and other misbehaviours of the
system to occur.23 Finally. Distributed Denial of Services (DDoS) attacks will be
explained.
1.5 Distributed Denial of Services (DDoS) attacks
These sorts of attacks overwhelm websites which causes them to crash and
disables them to communicate with the legitimate users of the website.24 DDoS
attacks require the perpetrator to obtain unauthorized access to a number of
18 Katyal 2001 p. 1026
19 TheFreeDictionary
20 Zetter 03-21-2013
21 Katyal 2001 p. 1026
22 Ibid p. 1027
23 Symantec. Enterprise
24 Katyal 2001 p. 1028

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computers creating a network of infected machines. This is done via spreading
malicious software such as the ones mentioned earlier. The network created by the
perpetrator can then be commanded to target a website and flood it with a high
volume of traffic (the information or signals transmitted over a communications
system)25 which can cause the website to go offline. These attacks can be
committed in various ways, two examples of which are sending more connection
requests than the server is built to handle or by sending the target huge amount of
random date which overloads the victim’s bandwidth.26 Bandwidth refers to the
amount of data which can be transmitted over a certain amount of time for digital
devices bandwidth and is measured in bits per second.27
Tracking DDoS attacks has proven difficult due to the huge inflow of infected
computers and the amount of IP spoofing – this entails the perpetrator using
software to impersonate a victim’s computer.28 This is one possible explanation
for the raise in numbers of DDoS attacks. According to the report by the ATLAS
Threat group which concluded that approximately 2000 attacks occur daily.29
DDoS attacks have been the main tool of the infamous hacking group
Anonymous, which in the last few years has brought down websites such as
MasterCard, Bank of America, and Library of Congress, even conducted attacks
on the FBI and the Department of Defence.30
Part 2: Traditional crimes
The second major grouping in cybercrime is when the computer is used as a tool
to facilitate traditional crimes. Examples of this include intellectual property theft,
and financial crimes.
2.1. Copyright Infringements
Cyberspace has also influenced and strongly changed the theft of intellectual
property. The development of technology and the internet has created a platform
25 Merriam-Webster
26 Digital Attack Map
27Webopedia
28 Katyal 2001 p. 1028
29 Digital Attack Map
30 Ribeiro 04-11-2013

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which is used as a substitute of previous techniques employed by offenders.31
Copying for a cybercriminal costs nothing due to the fact that one only needs to
upload a song/album to the internet where millions of people will have access to it
almost immediately. Compared to traditional counterparts in the 1970s or 80s
where the costs were much higher, due to the need to have a legitimate copy, the
need to buy recording equipment and a tape or cassette on which to record and the
costs in redistributing the illegitimate copies.32 Piracy has caused millions, if not
billions, of dollars to the music industry.33 However, for an offender on the
internet, unlike their counterparts in previous decades, the redistribution does not
normally involve a monetary gain.34
2.2 Child Pornography
Another area influenced by cybercrime is child pornography. Before the digital
age, a person intending to distribute content of this kind would have certain
limitations on the amount of people they can give or sell a copy to. The internet
has offered almost instantaneous access to any information put on it by millions of
people.35 Furthermore, new technological developments have brought down
production costs. This can also influence the way child pornography is made, by
escaping the need to use a real child and turn to digitally generated images.36
Due to the accessibility of cyberspace, and in turn the increase of cybercrime,
which is consequently easy to commit and much of the knowledge needed to
commit it is in the hands of private individuals law approaches to cyberspace will
need to be revised.37 In the following sub-sections some of the problems with
regulating cybercrime will be presented.
31 Katyal 2001 p.1033
32 Ibid p.1033
33 Ibid p.1033
34 Ibid p. 1034
35 Ibid p. 1030
36 Ibid p. 1030
37 Ibid p. 1035

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Part 3: Problems with regulating cybercrime
The lack of high costs for perpetrators is one factor that can explain the rise of
cybercrime.38 Computers facilitate criminals in evading legal sanctions and
monetary costs as well as social norms. Criminals can commit an offence with
less investment and a lower probability of getting caught as well as with a certain
level of anonymity.39 Increasing the costs of hackers’ software programs and
tools, or certain websites charging an admission fee, can be used as a way to deter
criminal activity.40
The emergence of the personal computer (PC) changed the way perpetrators
approached certain crimes, the PC poses a significant threat to the rule of law.
First computers are a good substitute for man power that is required for the
execution of a certain criminal enterprise. Second, the PC as well as the World
Wide Web (WWW) allow anonymity and secure connections, which are either
difficult or impossible to trace. And finally, due to what has previously been
stated cybercriminals are invisible, and in most cases untraceable. The anonymity
of the WWW can be said to facilitate illegal transactions and allow for an easy
way to evade law enforcement and restrict some of the practices of police, like the
use of informants.41 The availability and accessibility of the internet allows them
to operate remotely as well.42
Cyberspace has, furthermore, merged the borders of private and public
enforcement, by enabling citizens to police the internet and become informants for
official enforcement bodies. This can be seen by the emergence of the Cyber
Angels who patrol the internet for stalkers and child pornography and reports its
findings to the police.43
38 Katyal 2001 p. 1011
39 Ibid p. 1012
40 Ibid p. 1012
41 Ibid p. 1038
42 Ibid p. 1043
43 Ibid p. 1031

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Cyberspace offers offenders a big international arena where illegal activity can be
committed. This creates a multijurisdictional arena making enforcement of certain
laws difficult or at times virtually impossible.44
Further problems with regulating cybercrime emerge when looking at the dual-use
problem. This refers to the practice where a certain act can be used for both legal
and illegal activities, example of this is encryption.45 Making encryption illegal
would result in losing the positive and legitimate uses of it. Another example
which has already been mention is the use of Logic Bombs which are not
damaging when used in trial programs.
Additionally cybercrime adds another level of parties involved in the offence.
Most of cybercrimes are conducted using the WWW which is accessed using the
Internet Service Providers (ISPs). Creating liability for such third parties can lead
them to develop strategies which can make criminal activity in cyberspace more
costly.46 Furthermore, if third parties and victims are forced to take stronger
precautionary measures, this can diminish the value of the internet and result in a
fragmented internet where only certain trusted users can access specific sites.47
Furthermore, certain problems arise with the definition of cybercrime being the
same as traditional crime. One of these problems is the cost of committing
cybercrime, compared to the cost for committing a traditional offence. In the latter
case, preparation before the beginning of the offence is needed, depending on the
offence, for example bank robbery requires a group of people, fire arms,
knowledge of the building, maybe even a contact on the inside, it can further
involve violence and danger to the health of those involved. Compared to the
cyberspace form of this crime where a person would need a computer with
connection to the WWW. With this we can see that the offences committed in
cyberspace can result in less expensive ways to achieve the same goals as those
sought by traditional crimes.48 This can in turn mean that a new way in
44 Katyal 2001 p. 1030
45 Ibid p. 1008
46 Ibid p. 1008
47 Ibid p. 1008
48 Ibid p. 1007

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approaching and regulating cybercrime might be required, due to the different
circumstances and conditions of both types of crimes.
Although the new millennium brought new technological advances and new types
of crime which developed at a very quick pace, law did not necessarily follow the
same process of quick development.49 Some academics, who see cybercrime and
the cyberspace as a new area, have already pointed out the need to rethink some of
the existing legal rules and forge them into rules that are suitable for the digital
age.50 On the other hand one can find supporters of the opposite view, namely that
cybercrime should be viewed as traditional crime since the computer is only the
tool used for committing a specific offence.51 It’s not only the slow development
of law and law enforcement with regards to cybercrimes that can be noticed, but
also the slowed development of private industries to protect and secure their
data.52
Chapter 2: Cybercrimes Third parties
This paper is concerned with the effectivity and desirability of policies which
increase the liability of third parties in order to protect against copyrights
infringements. For this purpose we will first introduce the ISP on which this essay
will concentrate. This ISP is known as YouTube. YouTube will be used as a
prime example of the paper due to its high flow of users and also the large amount
of copyright infringements on the website. It has been described as the most
popular video sharing website. The following sections will look into first what an
Internet Service Provider is, following which YouTube will be presented and a
brief description of the legal problems and regimes employed by countries like
Germany, US, France and Italy will be given.
Part 1: Internet Service Providers (ISPs)
The internet and new technological developments have made it easier for a
criminal to embark on a criminal enterprise, with an easy access to millions of
49 Penki 2000
50 Katyal 2001 p. 1005
51 Ibid p. 1006
52 Ibid p. 1020

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potential victims and with the ability to terminate the action instantaneously.
Further invisibility and anonymity are provided by the internet as a criminal can
conduct his crime through several computers in different countries, which
complicates law enforcement.53 It leads to a need for stronger cooperation
between governments in order to battle cybercrime. However, this is not
guaranteed, and third parties may be more efficient in enforcing rules and
controlling cyberspace.54 Unlike traditional crimes, cybercrimes normally involve
the assistance of a third innocent party, who can have no knowledge of the illegal
activity being committed.55 The most common third party is the Internet Service
Provider (ISP). With the ILoveYou worm, a Philippines ISP was required so that
the worm can spread.56
Internet Service Provider or an ISP is a company which provides the infrastructure
that permits data flow on the internet.57 It allows both personal and business
access to the internet. They can however differ in the services they offer.
Nevertheless all activities are performed online.58 Law is faced with the problem
of encouraging third parties to police and protect cyberspace and battle
cybercrime. However, this has to be achieved in a way that does not undermine
the benefits provided by cyberspace.59 Third parties can secure the internet and
prevent future crime from happening, even if not present at the exact time. Prime
examples of this case are software engineers and programmers who unlike their
counterparts, i.e. cybercriminals, pursue positive goals.60 Furthermore, ISPs can
be encouraged to prevent cybercrimes if subject to legal risks, as the main element
of a cybercrime, ISP, will be present even if there is no perpetrator apprehended.61
Furthermore, third parties like ISPs can chaperone subscribers and monitor their
actions online. A second technique that can be employed by the third parties
53 Katyal 2001 p. 1096
54 Ibid p. 1097
55 Ibid p. 1095
56 Ibid p. 1095
57 Webopedia
58 Ibid
59 Katyal 2001 p. 1102
60 Ibid p. 1095
61 Ibid.p. 1096

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involved is removing risky subscribers from the network, if no identification is
given (ID, driver’s license or a passport). Third, ISPs or any other third party in
this case can act as a whistleblower and report instances of cybercrime to the
relevant authorities or private parties. Third parties can, also build software and
hardware which constrain its subscribers and restrict certain actions.62
However, the use of these techniques might not always be welcomed. For
example virus scanning software is costly, consumes a lot of memory and at times
can considerably slow down one’s PC. It can further threaten the users’ privacy.63
Nevertheless, the benefits of third party liability cannot be overlooked, as this in
turn can lead to more control on part of the third parties and their users.64
However, if liable this can lead to the removal, for example, of every user for
which the ISP has suspicion of wrongdoing.65
When it comes to online service providers generally their liability is secondary.
Unlike direct liability, which concerns the person engaging in the illegal actions,
secondary liability refers to instances where one is held liable for the
infringements of another.66 There are two ways in establishing secondary liability
– vicarious liability or contributory liability. The latter refers to actions where one
is aware of an infringing activity, and has induced, caused or materially
contributed to the infringing conduct of another. Here that entity can be held liable
for contributory liability.67 While the former refers to the ability and right of one
to supervise the actions of another and these actions coincide with a direct
financial benefit from the exploitation of copyrighted materials can be held liable
according to the vicarious liability doctrine.68
A fear that is shared between the music, movie and many other copyrights
owners, is that due to the speed and accessibility of the internet, an ever growing
number of copyrights infringements can be noticed. With this stated, one can
62 Katyal 2001 p.1098
63 Ibid p. 1099
64 Ibid p. 1099
65 Ibid p. 1099
66 Peguera 2011
67 Ibid
68 Ibid

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conclude that it would be impractical for copyrights holders to sue every single
individual who infringes their rights by posting a video clip, or anything, without
proper authorization.69 Therefore one can see that liability for websites like
YouTube, if companies like those fail to actively police their cyberspace and
check the materials posted by their users, can be useful.70
1.1 YouTube
YouTube is one of the most extraordinary inventions of the internet, called
“revolutionary” and a “phenomenon”.71 It has further been defined as an “illegal
free-for-all”.72 Launched in December 2005 and within months tens of millions of
people visited the website to view television clips and also post their own clips.73
The success of YouTube to a certain level can be attributed to its user-friendly set
up, which does not require visitors of the website to register and log in in order to
view videos.74 Users can access all videos uploaded to YouTube at any point, this
instantaneity is one of its main virtues.75 In 2006 Google bought YouTube for 1.6
billion dollars.
Following its quick raise to the top, YouTube has turned into an alternative media
which is in place to expose political gaffes, police violence or any abuse of
authority and power, as well as the reality of the surrounding world.76 The
accessibility that YouTube provides has caused the development of a sense of
access entitlement which users of sites like YouTube possess. This can be seen
from the complaints when a video with copyrighted material is brought down, and
at times its immediate upload by a different user.77 YouTube has, furthermore,
contributed to the culture of the clip.78
69 Seidenberg 02-02-2009
70 Ibid
71 Hilderbrand 2007 p. 2
72 Hunt 2007 p. 3
73 Hilderbrand 2007 p.2
74 Ibid p. 3
75 Ibid p. 3
76 Ibid p. 4
77 Ibid p. 4
78 Ibid p. 3

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1.2. Copyright issues
Although not unknown before the digital era, unauthorized use of copyrighted
works gained significance in the digital era due to the quick distributive force of
the internet.79 Copyrights have served their owners in a number of ways but most
important by creating a number or exclusive rights, including making copies,
distribution of those copies, public performances of the work, or making new
derivate works based on the original.80
Since its creation YouTube has faced multiple copyright infringement cases. The
user generated content on the website can be divided in roughly three categories.
The first includes copied videos from recordings, with no alteration to the footage,
or original songs of famous artists, etc. The second involves appropriated clips
which although including copyrighted works which are used for a different
purpose, like an amateur music video or lip-syncing to popular songs in a
bedroom. And the final category includes original content of the users.81 All three
of the categories are strongly rooted in the YouTube website. The most sought
after with regards to copyright claims is of course the first one. However, one has
to acknowledge that the existence of the other two categories emphasizes the non-
infringing uses of the website.82 Millions of videos with indisputable material
which in no way infringe copyrights are present on YouTube and contribute to the
cultural development of an ever growing community.83 It is estimated, however,
that between 30-60% of the materials posted on YouTube is unauthorized
material. This has sparked an intense process on part of the copyrights holders
who have issued thousands of takedown notices and have filed a number of
lawsuits against YouTube.84
Although different, YouTube is also similar to P2P networks like The Piratebay,
in that that it provides a platform for sharing unauthorized content and its
79 Arewa 2010 p. 5
80 Lohmann 2007 p. 129
82 Ibid p. 10
83 Ibid p. 10
84 Hunt 2007 p. 3

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redistribution.85 Although it does not directly allow users to download the content
uploaded on it, there are an ever growing number of unauthorized utilities and
websites that allow users to download content from YouTube and store it
offline.86 Furthermore, YouTube self-regulates its uses. An example of this is
disabling videos that are subject to take-down requests from the copyrights
owners.87 Problems arise to the sites ex ante regulation and its reluctance in doing
so, and its hosting of infringing content although possibly possessing knowledge
of such infringement.88 Like P2P websites YouTube has also experienced a
number of copy-cat websites with similar infringing content.89
1.3 YouTube’s Filtering System
YouTube possesses a filtering system which, according to the company itself, has
been described as an advanced set of copyright policies and content management
tools. The Content ID fingerprinting system of YouTube provides both YouTube
and rights holders, with the required knowledge of copyright infringements.90 This
and more tools are available to the parties concerned who are willing to license
their content to YouTube. This was held as evidence of intend to foster
infringement on the website in the case of Arista Records LLC v Lime Group
LCC.91
The “Content ID” and “Video ID” filtering tools allow YouTube to automatically
take down videos which are marked as similar to the original works.92 As a result
of filters like those music songs are taken down automatically, examples of this
can be found when we look at one of the major companies.93 This technology
although being placed to protect copyrights owners, is in turn damaging the works
86 Hunt 2007 p. 6
88 Ibid p. 11
89 Ibid p. 11
90 Sims and Figueira 2010 p. 3
91 Ibid p. 3
92 Leister 2011 p. 12
93 Ibid p. 14

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of new creators, for which UGC websites have proven to be a breeding ground.94
The following sections will point out some of the most relevant case law
regarding YouTube and its liability and outline some of the legal regimes under
which YouTube operates.
Part 2: Cases and Legal Regimes
2.1 United States
The US has faced the challenges posed by cyberspace and cybercrime with The
Computer fraud and abuse act and art. 1030. This article prohibits certain forms of
unauthorized access to all “protected computers”. According to the article a
protected computer is any computer used to connect to the internet.95 The
provision carries a mandatory minimum sentence of six months if one is convicted
under that article. Further distinctions of cybercrime can be found in State laws
were for example theft, or interruption of a computer services is seen as an
independent offence, same applies to acts of disclosing passwords or other
security information.96 Nevertheless, a problem arises in prosecuting criminals
coming from different states, as well as the difficulty in finding the person
responsible. Turning to the Copyright Act and section 106 one can see that certain
exclusive rights are given to copyrights owners, examples include the right to
reproduce and perform in public. By uploading a video to YouTube users infringe
the copyrights of the owners and namely the right to reproduce. In order for the
video to be accessible on the website YouTube converts it and in order to do this
it has to make a copy of the video, so in turn YouTube can also be held in breach
of section 106(1) of the Copyright Act the right to reproduce.97 Once uploaded,
every time a video is viewed by the users of the website it can be seen as an
infringement of the right to public performance and a possible violation of section
106(4) of the same Act.98
94 Leister 2011 p. 19
95 Katyal 2001 p. 1017
96 Ibid p. 1020
97 Hunt 2007 p. 9
98 Ibid p. 9

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2.1.1 The Digital Millennium Copyright Act (DMCA)
The Digital Millennium Copyright Act (DMCA) was adopted in 1998 in the US in
order to combat digital piracy. It amended Title 17 concerning copyrights in order
to combat copyright infringements in the digital age.99 The Act offers a series of
safe harbor provisions that limit the liability of third parties who play a passive
role in the transmission, reproduction and storage of illegal files online.100
“Cease and desist” notices have become the main practice to combat copyright
infringements. What has been shown is that if provided with the necessary
information ISP and other third parties would take down videos or websites which
are infringing someone’s copyrights.101 According to the DMCA, service
providers are given some safe harbor provisions to keep them protected from
copyrights infringements committed by their users. In order to be able to rely on
the safe harbor provisions a service has to implement the “notice-and-takedown”
procedure. So long as it complies with such notices the service can escape liability
and monetary damages.102 If a notice-and-takedown procedure is followed the
user which uploaded the video under question has to be promptly informed as to
why his video is offline. The user can respond with a counter notice if they
believes that the content of the video is not infringing.103 Under the DMCA and
the rulings of US courts, it has been established that copyright owners have to
consider the practice of fair use before issuing a takedown notice.104
YouTube has so far been complying with the takedown notices and the provisions
of the DMCA, example of this are in 2006 when YouTube deleted nearly 30 000
videos followed by the deletion of 100 000 videos on the request of Viacom.105 It
has further finalized a number of licensing deals with content owners like
99 Douglas 2012 p.3
100 Peets and Young 2009 p. 2
101 Ibid p. 3
102 Lohmann 2007 p. 130
103 Ibid p. 131
105 Hunt 2007 p. 7

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Universal Music and CBS, it has provided the “Claim Your Content” filtering
system which is created to automatically identify copyright material.106
The lawsuit brought against YouTube by Viacom raised important questions with
regards to secondary liability for third parties copyright infringements.107 Liability
of service providers is still a much contested issue. This issue revolves mainly
around the question of how to treat platforms that have potential for both positive
and infringing uses.108 This is particularly the case with providers of platforms
which use user-generated content as their basis where users can upload vast
amounts of information raging from photographs to movies. Examples of these
include YouTube, Flickr, MySpace and Facebook to name just a few. All of these
providers rely on the safe harbor provisions developed in the DMCA act section
512.109
The DMCA provides certain protections for service providers. One of these can
be found in section 512(c) which provides that a service provider, like YouTube,
will be exempt from all monetary damages against them for infringing content
stored on their servers on the command of their users.110 Turning to contributory
infringement section 512 requires the services providers to be unaware of an
infringing material or activity on their servers, as well as no knowledge of the
circumstances in which infringing activity can occur and finally when provided
such knowledge expeditiously act to remove such material.111 Furthermore section
512(c)(1)(B) states that service providers are forbidden from receiving a financial
benefit that is directly attributed to the infringing activity or material, if the they
possess the technology and software needed to control such activity.112
106 Hunt 2007 p. 4
107 Peguera 2011 p. 2
108 Ibid p. 3
109 Ibid p. 2
110 Ibid p. 6
111 Ibid p. 6
112 Ibid p. 6

21 | P a g e
2.1.2 Betamax case
In the Betamax case, which was the first one concerning secondary liability for
copyrights infringements, the US Supreme Court ruled that where a device is
distributed that enables copyright infringements, and the suppliers have the
potential knowledge of such copyright infringements, they will not be liable for
the infringements committed by the end user as long as the device is “capable of
substantial non-infringing uses”.113 YouTube has been haunted by the rulings that
followed the P2P cases of Napster and Groskster. However, a look to the Betamax
case is needed. In this case the Supreme Court of the US ruled that Sony cannot
be held liable for the way their home recorders are used by their customers.114
Although similar to Napster and Groskster as already mentioned, YouTube also
resembles the Betamax case as YouTube can be seen as a tool, similar to a home
recorder, for which the company, in Betamax Sony and here YouTube, cannot be
held liable for the way it is used by its consumers.115 Unlike the infringements
committed by the creators of Grokster, YouTube does not resemble such
intentional action. As seen YouTube has expressed good faith, and before being
bought by Google was known as a “good corporate citizen”. It has been
responding to take down notices and removing more than hundred thousand
videos with claimed copyright infringement. It has furthermore prevented the
unauthorized upload of already removed copyrighted videos, as well as it has
expressed serious efforts in creating filtering tools to automatically combat
copyright infringements.116 With all of this one can state that YouTube, unlike
Grokster, acts in good faith and falls far from being seen as a contributing to
copyright infringements. With this we can safely state that YouTube fails the
Grokster test for establishing contributory liability for service providers. The test
states that where one distributes a device or service with the object of promoting
copyright infringements and this object can be seen by the expression of actions
113 Peguera 2011 p. 4
115 Ibid p. 10
116 Peguera 2011 p. 9

22 | P a g e
of the provider, he will be liable for the infringement acts committed by third
parties.117
2.1.3 Viacom v YouTube
Two cases were brought against Google and YouTube in 2007 stating that both
platforms had deliberately facilitated massive copyright infringements on the
YouTube website. Furthermore, the people concerned possessed the knowledge
that majority of the content on their website was infringing copyrights.118 In 2007
Viacom, an American global mass media company filed a lawsuit against
YouTube accusing it of illegally broadcasting 79,000 copyrighted videos between
the years 2005 and 2008.119 Viacom owns media networks like Comedy Central,
MTV and Paramount movie studios.120 The cases tested the safe harbor provisions
of the Digital Millennium Copyright Act of 1998. The US District Court of New
York ruled that services like YouTube and Google were entitled to immunity
under the DMCA safe harbor provisions and section 521(c). Following this an
appeal to the 2nd Curcuit Court of Appeals in New York was launched. In April
2013 the presiding judge decided that Google and by reference YouTube were
protected by the DMCA and were under no obligation to monitor the content of
videos being uploaded, which by the year the decision was taken was at a rate of
24 hours of viewing time per minute.121
2.1.4 Io Group Inc v Veoh Networks Inc.
Similar to the Viacom International Inc. v YouTube Inc. case, a less known case
which poses similar questions to intermediary liability for copyright infringements
is Io Group Inc v Veoh Networks Inc. One of the arguments posed by Io with
regards to the liability of Veoh and their inability to rely on the safe harbor
provisions of the DMCA concerned the situation in which a service provider
possessed the knowledge and the ability to control an infringing activity occurring
117 Peguera 2011 p. 8
118 Sims and Figueira 2010 p. 2
119 Stempel 2014
120 Ibid
121 Ibid

23 | P a g e
on their websites, but instead relies on such activities to generate revenue.122 The
court in this case reinforced the safe harbor provisions of the DMCA and stated
that as long as the websites takes appropriate steps to deal with copyright
infringements there will be no liability for those companies.123 However, one of
the arguments that Viacom raised against YouTube is that it was not policing its
system adequately enough. Even though YouTube is in possession of the
technology to combat and possibly remove copyrighted material, which
technology is only employed to protect works of companies that have licensed
some of their materials to YouTube, such as MGM movies, HBO or Sony BMG
music entertainment.124
To conclude, what can be seen from previous cases like Viacom v YouTube,
Betamax and Io Group, service providers are protected under the DMCA act when
it comes to third party copyright infringements
2.2 European Union and the E-Commerce Directive
The Electronic Commerce Directive 2000/31/EC was adopted by the Union states
in the year 2000. It sets up the framework for electronic commerce.125 It provides
rules on issues like limitations of liability of intermediary service providers,
commercial communications, transparence and etc.126 The E-Commerce
Directive, adopted two years after the adoption of the DMCA, governs the
liability of ISPs in Europe.127 Unlike the DMCA the E-Commerce Directive has
provisions which are concerned with both copyright infringements but also with
tortious or criminal activity on the internet.128 The Directive covers services such
as online information, online selling of products and services, entertainment
services.129 Articles 12 to 15 of the E-Commerce Directive deal with the liability
of intermediary parties. Article 14 specifically deals with hosting services, where
122 Seidenberg 02-02-2009
123 Ibid
124 Ibid
125 European Commission
126 Ibid
128 Ibid p. 3
129 European Commission

24 | P a g e
the information is stored and unlike articles 12 and 13 it’s not for temporary
storage.130 Article 15 provides for a no general obligation to monitor its servers.
However, the obligation to monitor is not fully blocked by this article as sub-
section 2 of the same article provides for specific obligations on part of
providers.131
2.2.1 France
In two separate 2011 decisions of French courts, it was stated that hosting
providers after receiving notice of infringing content or activity had the duty to
implement all possible measures to take down similar content and to avoid its
future dissemination, the same applied to the company giant Google.132 In its most
important case against YouTube the Intellectual Property Chamber of Paris held a
ruling on 29 May 2012 regarding YouTube’s liability for third party
infringements. According to the court YouTube is under no obligation to check
the content uploaded on its servers for copyright infringements and is furthermore
not required to take new precautionary measures due to the sufficiency of the
already established systems which prevent infringement.133 According to the
French court YouTube can be considered a hosting service provider. Unlike
publishers or editors, who will be primarily liable for infringements, YouTube
will only be held contributory liable for copyrights infringements committed by
its users as it gives access to those infringed works, and only in cases where
YouTube had “actual knowledge” of the infringement.134 Finally the court noted
that the five-day long period it took YouTube to take down the video after being
notified of the infringement was too long, unlike the DMCA provisions.135 The
court stated that YouTube is under no general obligation to preemptively police
and control the content of the uploaded videos. Furthermore, unlike the German
court in Gema v YouTube, the French court stated that YouTube’s alert system
and the warnings its users receive with regards to copyrighted materials is
130 Lodder 2007 p. 22
131 Ibid
132 Sternburg and Schreurs 2013 p. 6
133 Casalonga and Gevorkian 09-2012
134 Ibid
135 Ibid

25 | P a g e
sufficient and no further measures are required on part of YouTube.136 The
German court in turn concluded that YouTube has to install new filters in addition
to the content ID system and keyword filters, which would detect copyright
infringements.137
2.2.2 Italy
In 2009 Reti Televisie Italiane brought a case against YouTube. The Italian Court
held that with regards to copyright infringements YouTube can be held under
contributory liability as it was aware of the illegal content stored on its serves and
it went beyond storing the content as it selectively took down illegal works. The
Italian court stated that “awareness” meant either actual knowledge of the illegal
content or the ability to verify the lawfulness of such content on its website, with
similar tools to the ones YouTube already employs.138
2.3.2 Germany
One of the most prominent examples of the problems YouTube faces with regards
to copyrights can be found in Germany. Since 2010 YouTube has been in a
dispute with GEMA collecting society regarding the royalties YouTube has to pay
to GEMA in order to be able to show the videos for which GEMA owns the
rights. Royalties refers to usage based payment made from one party to another, in
most cases from the user to the creator of the work in question.139
GEMA is a German organization dedicated to controlling the usage of music. It
holds the rights to redistribution and public performances of songs, and in turn
collects money on behalf of the artists for every usage of said songs.140 Relations
between GEMA and YouTube started in 2007 when GEMA was the first
collecting society to enter into agreement with YouTube for the use of
copyrighted works. The agreement however expired in 2009 and the follow-up
negotiations didn’t end well. The amount required by GEMA in order for
137 Ibid
138 Ibid
139 Law Dictionary
140 Anhut 2011

26 | P a g e
YouTube to be able to stream its videos would come as a heavy burden on the
business model of Google’s video streaming service. In 2010 GEMA broke off
negotiations and started a case against YouTube. The judgment of this case was
delivered in 2012 where the Hamburg court ruled that YouTube is under legal
responsibility for the content uploaded by its users under the principle of interferer
liability (Störerhaftung). This liability arises when the actor contributes to
infringements, and violates its monitoring duties.141 Furthermore, GEMA required
YouTube to be considered as a content provider and not a technical and neutral
hosting platform, which would increase the liability of the USG website with
regards to copyrighted works which were uploaded unlawfully on their servers.
According to the decision in the case of Gema v Youtube, the USG website must
install filters to prevent users from uploading copyrighted works without the
permission of the artists, or their representatives. A fine of up to 250 000 euro per
song can be imposed on YouTube if future upload of such content occurs.142 The
court has rejected the theory that YouTube as a hosting service provider is not
responsible for the content uploaded by its users.143
The dispute between GEMA and YouTube has hit hard the users of the video
platform.144 According to a study made by OpenDataCity, 53,1% of the top 1000
videos on YouTube are blocked due to possible conflict with the rights held by
GEMA, an additionally 8,4% of videos are blocked for indeed infringing GEMAs
rights.145 The dispute between the two organizations has resulted in hundreds of
music videos of international artists not being available in Germany. Following
the Hamburg Courts decision, YouTube was obliged to take down all videos
which had in any form parts of the 7 copyrighted works owned by GEMA, this in
turn included homemade videos with music on the background.146 Similar issues
to those in Germany have faced YouTube in Britain where it blocked certain
141 GEMA
142 Ahad 2012
143 Ibid
144 Muller 2012
145 Ashraf 2013
146 Muller 2012

27 | P a g e
copyrighted music videos until it resolves its conflict with the Performing Rights
Society for Music.147
What can be concluded from all these cases is that USG websites can be held
liable for infringing content on their sites uploaded by their users after they
acquire actual knowledge of such content. Only the Italian court so far has ruled
that YouTube cannot turn a blind eye on the illegal content stored on its site, and
held that YouTube can be held liable even before the notification from the rights
holder. In turn the German court has ruled for stronger security measures in order
to avoid future infringements.148
Chapter 3: Effectiveness of Copyright policies
UGC websites reflect the technological development and availability of tools that
enable users to share, create, comment and criticize a variety of content. An
important observation is that many UGC websites are more popular than they are
profitable.149 Furthermore, they have been a positive influence on creativity.
Studies have shown that by 2013 more than 115 million of new content creators
would have emerged. On the other hand, UGC websites are becoming the most
common platform to view video content.150 The technological innovations, e.g.
MP3 and other digital formats, have facilitated in the creation, copying and
dissemination of works and effectively reduced the control of the entertainment
industry.151 This rise in turn poses new challenges for both the cultural industry
and the law enforcement with regards to copyrights. Recent years have seen
copyrights infringements lawsuits fought on a couple of fronts. The first one being
litigation against P2P software providers, the second concerned the end users and
finally against the ISPs. However, actions against individual end users have
proven costly and this is why industries support the view that the best policing
will be achieved through the actions of ISPs.152 Litigations of such kind have
influenced liability laws of intermediary parties with regards to copyright
147 PhysOrg
149 Arewa 2010 p. 3
150 Ibid p. 3
151Ibid p. 5
152 Giblin 2014 p. 1

28 | P a g e
infringements on the internet.153 However one has to ask the question if policies
which increase the liability of intermediary parties for copyright infringements are
effective and desirable.
Judging the successes and effectiveness of copyrights laws is a difficult process. It
poses the question of what are copyrights laws seeking to achieve. This question
has been the cause of significant debate between both supporters of the natural
rights theory and the utilitarians.154 For utilitarians the most important aspect of
copyrights is the maximizing of creation and dissemination of content, the extent
to which those aims can be considered achieved by infringing acts will only be
relevant if those infringing acts deter future creation of works. While on the other
spectrum we have the natural rights supporters who argue that the only reason
copyrights are present is for the protection of the rights of the authors and creators
of such content, no matter if content like that can achieve broader cultural ends.155
Despite this conflict, three main characteristics of copyrights laws are useful when
trying to identify the effectiveness and success of such policies. The first concerns
to what extent such policies reduce copyright infringements.156 The second
concerns the extent to which such policies maximize the size of the legitimate
market and authorized uses.157 The assumption being that fewer copyright
infringements result in higher revenue for creators.158 The third final
characteristic, the extent to which the creation and dissemination of content is
encouraged by such policies.159
The following sections will look at each one of those aims and the successes or
failures of copyright policies in various jurisdictions.
153 Giblin 2014 p. 1
154 Ibid p. 3
155 Ibid p. 5
156 Ibid p. 3
157 Ibid p. 4
158 Ibid p. 4
159 Ibid p. 6

29 | P a g e
Part 1: Reduction of copyright infringements
First copyright policies are put in place to reduce copyright infringements.
Judging the successes of copyright and liability policies is based on the success in
reducing such infringements. Due to the young nature of UGC websites
comprehensive studies in how far liability policies have managed to reduce
copyright infringements are still not available. This paper will not be able to
conduct such a study however a useful tool for examining this requirement of
copyright policies can be the policy of graduated responses which can provide
some insight into understanding the effectiveness in reducing copyright
infringements and also the future applications of restrictive policies with regards
to third parties. Graduated responses are a type of procedure adopted in certain
countries to combat copyright infringements arising from file sharing on the
internet.160 Users who commit such infringements will first receive a notification
informing them of the illegal activity in question, repeat offenders can face
measures such as bandwidth reduction and finally temporary account
suspension.161 Example of such graduated response can be found in France with
its HADOPI-2 law. Although being one of the prominent examples with its
approach to graduated responses, studies have shown that there exists no clear
evidence linking the decrease in copyright infringements and the copyright policy
France employs with regards to the internet.162
Furthermore, as has already been mentioned, YouTube users tend to upload
videos which have been taken down by the filtering systems of YouTube or
because of a takedown notice from the copyrights holder. With this in mind one
can state that policies which increase the liability of third parties have, to a certain
level, been inadequate in decreasing the amount of future infringements.
Part 2: Maximizing the size of the legitimate market
A second aim of copyright policies is the redirection of traffic from illegal means
to the legitimate market. First we will again look at the application of HADOPI in
160 Giblin 2014 p. 6
161 Klosek and Gubins 09-10-2008
162 Giblin 2014 p. 42

30 | P a g e
France then a summary of a study conducted for Germany and it’s restrictions on
YouTube will be provided.
Turning to France and its application of HADOPI-2 the Lescure Report of May
2013 was examined the application of HADOPI in France and its effectiveness in
redirecting traffic from illegitimate sources to the legitimate market. It concluded
that the law in question did not achieve its aims, namely redirecting the illegal
activity to a legal market but in turn saw a redirection of traffic from one
infringing source to another.163 Two years after the introduction of HADOPI in
France the International Federation of Phonographic Industry (IFPI), an
international organization which represents more than 1300 music companies,164
noted that recorded music market dropped by 2,7% and 2,9% in 2011 and 2012
respectively. This in turn was more than 1% higher compared to the previous two
years.165 Following the statements made by the IFPI and the Lescure Report one
can state that HADOPI, although bringing a reduction in P2P infringements,
merely redirected traffic to other infringing sources and failed in increasing the
legitimate market which was its primary aim.166 Furthermore, a separate study of
2012 identified France as the fifth largest file sharing market.167 France Telecom
has noted an increase in streaming and cyber locker traffic following the
introduction of HADOPI.168.
YouTube has had its own influence on the entertainment market, being the most
dominant video sharing platform. However due to the dispute between GEMA
and YouTube, more than 500 of the top 1000 videos on YouTube are blocked,
while these same videos are available in other countries.169 However, it has to be
noted that promotional effect or free sampling that online music videos provide is
enough to offset sales displacement of songs, even when the recording industry
163 Giblin 2014 p. 6
164 IFPI
165 Giblin 2014 p. 51
166 Ibid p. 51
167 Ibid p. 52
168 Ibid p. 53
169 Kretschmer and Peukert 2014 p. 6

31 | P a g e
has no control over the free sampling of consumers.170 It has been shown that the
availability of YouTube videos has no effect on digital sales of songs, while a
positive influence has been seen with regards to album sales. This means that the
promotional effect YouTube provides outweighs the displacement effect, i.e.
consumers stick to free sampling instead of purchase.171 With these two examples
one can conclude that the policies employed by France and Germany have been
inadequate in redirecting traffic to the legitimate market and have possibly
influenced negatively that market.
Part 3: Encouraging creation and dissemination of content
YouTube allowed people to be creative and share with ease. However, it was
faced by a strong opposition campaign based on protecting copyright owners.
Copyright laws are placed to ensure the future creation and distribution. However,
certain copyright policies have proven inadequate in ensuring that such future
creation and distribution will continue. A clear example of this can be seen from
the case of Lenz v Universal Music Corporation.172 This case concerned the
upload of a simple home video, which featured a music track for which Universal
Music held the rights. The video was flagged by YouTube’s detection system and
Universal Music filed for a takedown notice.173 From this case one can see that
excessive protection measures for copyrights holders can stifle and restrict the
creation of new works.174 While YouTube has emerged as a substitute for the
record industry and produced a number of super stars.175 Policies such as the one
applied by GEMA have been shown to limit the availability of content on
YouTube restricting more than 60% of the top 1000 videos.176 According to one
of the CEO’s of Sony Music restrictive regimes of collecting societies and legal
171 Ibid p. 28
172 Lenz v. Universal Music Corp. 572 F. Supp. 2d 1150
173 Laura 2011 p. 3
174 Ibid p. 5
176 Ashraf 2013

32 | P a g e
regimes prevent the economic development and restrict the music industry and in
turn also damage artists and music labels who lose both audience and revenue.177
All of this can be seen as proof that the copyright policies, applied in certain
jurisdictions which have led to automated takedown of videos or just a restriction
on viewing for certain countries, can discourage the creation of new content and
have also failed in encouraging the dissemination of content by blocking videos.
Conclusion:
Liability of ISPs for third party copyright infringements has become a highly
debated topic in recent years. Judging the effectiveness of such copyright policies
is a hard process. Nevertheless, the three main characteristics of copyright
policies, (i)reducing copyright infringements, (ii) increasing the size of the
legitimate market, and (iii) encouraging the creation and dissemination of future
content, provide useful tools with which one can review copyright policies. From
what has been provided in previous sections, we can safely conclude that the
restrictive policies and regimes employed by governments and organizations have
failed in at least one of the three characteristics of copyright policies. Actions of
organizations like GEMA or the HADOPI law employed by France have
restricted the growth of the legitimate market. This has also been noted by CEOs
of big recording industries. Furthermore, automated deletion software has
contributed to the limiting of new content and distribution of old content. With all
of this stated owe can conclude that a new approach for copyright policies is
needed in the digital era. This can also be seen in the recent report by the World
Wide Web Foundation which state that online censorship is increasing.178
Websites like YouTube have become increasingly popular and have contributed to
the creation of new works and the development of a new community. YouTube
has proved that it has significant impact on social and cultural life, using and
recycling existing works facilitates intergenerational transmission, it brings
obscure works to the attention of the public, increase the value of existing works,
and allows for new artists and creators to be more easily discovered.179 Policy
177 TorrentFreak
178 BBC News
179 Arewa 2010

33 | P a g e
makers need to balance the benefits of such platforms before increasing their
liability and restricting the legitimate uses available.

34 | P a g e
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