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cyberlaw:intermediaries_safe_harbours [2019/01/24 18:05]
witta
cyberlaw:intermediaries_safe_harbours [2019/09/25 17:13] (current)
nic
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 ## Chapter Overview ## Chapter Overview
  
-This Chapter provides a brief history of the development of safe harbour protections in the United States (US) and Australia. It then outlines the four main copyright safe harbours in Australia, which are in the _Copyright Act 1968 _(Cth) and only apply to Carriage Service Providers (CSPs), ​not Internet Service Providers (ISPs) as in the US. The Chapter explains that each safe harbour has particular conditions, and that Australian safe harbours provide limited immunity for CSPs. It concludes by outlining other Australian safe harbours and some US case law, and discussing the future of copyright safe harbours. ​+This Chapter provides a brief history of the development of safe harbour protections in the United States (US) and Australia. It then outlines the four main copyright safe harbours in Australia, which are in the _Copyright Act 1968_ (Cth) and only apply to Carriage Service Providers (CSPs), ​rather than Internet Service Providers (ISPs) as in the US. The Chapter explains that each safe harbour has particular conditions, and that Australian safe harbours provide limited immunity for CSPs. It concludes by outlining other Australian safe harbours and some US case law, and discussing the future of copyright safe harbours. ​
  
 ## A Legislative Bargain ## A Legislative Bargain
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 ### Viacom v YouTube (2nd Cir.) (Decided April 5, 2012) ### Viacom v YouTube (2nd Cir.) (Decided April 5, 2012)
  
-Google were very responsive to takedown notices, although this suit targeted behaviour pre-2008, when protocols were not always highly formalised. District Court found that Google'​s actions were sufficient to find (on summary judgment) that Google was protected ​by the 512(csafe harbor.+**Overview video by Emily Guiver: [Viacom v YouTube](https://​youtu.be/​SC75opYLwZI)**
  
-On appealthe Second Circuit held that there were open questions of fact that warranted investigation on trial – summary judgment ​was inappropriate.+Viacom InternationalInc. v. YouTube, Inc was a controversial U.S case where Viacom sued YouTube for $1bil U.S dollars for copyright infringement
  
-This content is now out of date! Please help by updating it.+Viacom alleged that over 150,000 unauthorised clips of their programming had been made available on YouTube. These clips had allegedly been viewed a collective 1.5 billion times without their permission. However, the Court ruled that YouTube was protected ​by the safe harbour provisions included in §512 of the Digital Millennium Copyright Act (‘DMCA’) because they had met the requisite conditions for immunity. Specifically,​ YouTube only had general knowledge of the infringing behaviour – not specific knowledge of infringements (which would disqualify them from protection under the DMCA).
  
-US hosting safe harbour applies to direct as well as secondary liability: "The District Court correctly determined that a finding of safe harbor application necessarily protects a defendant from all affirmative claims for monetary relief."​+This decision confirms that online service providers can rely on the DMCA’s safe harbour provisions to protect them from copyright infringement claims even where they have general knowledge of infringement on their sites. 
 + 
 +Google were very responsive to takedown notices, although this suit targeted behaviour pre-2008, when protocols were not always highly formalised. The District Court found that Google'​s actions were sufficient to find (on summary judgment) that Google was protected by the 512(c) safe harbor. 
 + 
 +On appeal, the Second Circuit held that US hosting safe harbour applies to direct as well as secondary liability: "The District Court correctly determined that a finding of safe harbor application necessarily protects a defendant from all affirmative claims for monetary relief."​
  
 Different levels of knowledge can disqualify a provider from the safe harbour: Different levels of knowledge can disqualify a provider from the safe harbour:
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 >​“Under §512(c)(1)(A),​ knowledge or awareness alone does not disqualify the service provider, rather, the provider that gains knowledge or awareness of infringing activity retains the safe-harbor protection if it ‘acts expeditiously to remove, or disable access to, the material.’ Thus, the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material, because expeditious removal is possible only if the service provider knows with particularity which items to remove.” >​“Under §512(c)(1)(A),​ knowledge or awareness alone does not disqualify the service provider, rather, the provider that gains knowledge or awareness of infringing activity retains the safe-harbor protection if it ‘acts expeditiously to remove, or disable access to, the material.’ Thus, the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material, because expeditious removal is possible only if the service provider knows with particularity which items to remove.”
  
 +On April 18, 2013, the District Court issued another order granting summary judgment in favor of YouTube. Following the remand from the Second Circuit court of appeals, Judge Stanton ruled in favor of YouTube, finding that YouTube had no actual knowledge of any specific instance of infringement of Viacom'​s works, and therefore could not have "​willfully blinded itself"​. He also ruled that YouTube did not have the "right and ability to control"​ infringing activity because "there is no evidence that YouTube induced its users to submit infringing videos, provided users with detailed instructions about what content to upload or edited their content, prescreened submissions for quality, steered users to infringing videos, or otherwise interacted with infringing users to a point where it might be said to have participated in their activity." ​
 +
 +An appeal was begun, but the week before the parties were to appear in the 2nd U.S. Circuit Court of Appeals, a settlement was announced, and it was reported that no money changed hands.
  
 ## Broadcasting Services Act Sch 5, Cl 91 ## Broadcasting Services Act Sch 5, Cl 91
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