After Twenty Years: Copyright Liability of Online Intermediaries

Abstract

The choice to limit the liability of online intermediaries during the 1990's was one of the most crucial policy decisions that shaped the design of the Internet and the freedom of users. Online intermediaries were considered champions of a brave new world of exploding creativity and participatory democracy. This laid the groundwork for the legal approach to intermediary liability over the past two decades. Even though intermediaries were seen as efficient bottlenecks for copyright enforcement, they were sheltered from liability for their users' actions and were only expected to react upon knowledge of copyright infringement. It was assumed that exempting intermediaries from liability for harm caused by their users — is not only necessary — but also sufficient to safeguard the free flow of information and users' freedom.

The nature and function of online intermediaries have changed over the past twenty years. The key facilitators of the digital ecosystem in the 2010s are different from the Internet Service Providers (ISP) that formed the basis for policy during the 1990s. Online intermediaries have now taken different shapes and forms, thus challenging some of the assumptions underlying early liability policies.

This paper revisits the legal approach to intermediaries' liability for copyright infringements, arguing that the changing nature of online intermediaries makes immunity from liability insufficient to secure the freedom of users online. The free flow of information may require supplementing the immunity regime with a new set of duties and obligations for online intermediaries regarding the management of online content. These duties should not be confused with liability for content originated by others, but should apply to active engagement of intermediaries in managing such content.

The paper proceeds as follows: Part I briefly describes the legal regime of intermediaries' liability for users’ copyright infringements. Part II discusses the rational of the immunity regime, highlighting some of the core principles and underlying assumptions regarding online intermediaries. Part III analyses some of the features of online intermediaries in the 2010s, and Part IV addresses some implications for copyright policy.

Keywords: copyright, intermediary liability, safe harbor