In recent years, search engine providers, P2P website or other Internet service providers are often challenged in the courts by content owners. While the legal actions brought by international record companies are constant headaches for major Chinese search engine providers, including Baidu, Yahoo and Sogou, international search engine giants like Google and YouTube have also been struggling to resolve various lawsuits internationally.
These cases raise the same issues for legislators and judges in all jurisdictions — how to evaluate the business models of Internet Service Providers or Online Service Providers ("ISPs" or "OSPs", collectively "ISPs") and the responsibilities and obligations for copyright protection of the ISPs?
In 2007, the US Ninth Circuit Court of the State of California rendered its judgment for Perfect 10, Inc. v. CCBill LLC. The California Court granted CCBill LLC immunity under the Safe Harbor Principle on the ground that the notice for removal sent by Perfect 10, Inc. failed to provide sufficient information and could not be deemed as effective notice. The intention of the US Congress when adopting the Safe Harbor Principle was to ensure that liabilities are shared fairly between the parties by requiring the copyright owner to bear the burden of proving the existence of infringement. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. The California Court’s decision has been interpreted by US legal professionals as another affirmation of the application of "Safe Harbor Principle" to ISPs.
Perfect 10, the Plaintiff, is a publisher of an adult entertainment magazine and the owner of a pornographic website. The Plaintiff has created approximately 5,000 images of models for display on its website and magazine and holds registered copyrights for these images. However, the Plaintiff found that a large number of the images later appeared on the adult websites of its competitors.
CCBill LLC, the Defendant, and its affiliated companies, provides web hosting and online credit card payment services for such adult websites. For example, if a user wants to log-on to a particular adult website, he would need to provide his credit card number to the Defendant. Only after the Defendant contacts the credit card company on behalf of the website operator and a fee is paid will the Defendant connect the user to the gateway of the adult website.
The Defendant was found providing this service to many of the websites which posted copyrighted images. Therefore, the Plaintiff sued the Defendant and other infringing website owners ( collectively " Defendants " ) for contributory copyright infringement.
During the proceedings, the Defendant successfully argued that it only provided hyperlinks towards the infringing adult websites and, according to the Safe Harbor Principle under the Digital Millennium Copyright Act ("DMCA"), it was not liable for infringement as proper notice was not provided.
In China, a principle similar to the Safe Harbor Principle (the "Chinese Safe Harbor Principle") is established by Article 23(4) of the Regulations on the Protection of the Right of Information Network Dissemination of China (The “PRC Regulations”). Under this principle, an ISP is immune from liability if the ISP removes the links to the infringing work, performance, and audio or video products upon receiving notice from the right owner. Article 14(5) of the PRC Regulations requires the notice issued by the copyright owner to include the following information:
1) the right owner’s name, contact information, and physical address;
2) the description and network address of the infringing work, performance and audio or video products that are required to be removed; and
3) the preliminary evidential materials that prove the alleged infringement.
The PRC National Copyright Administration (the "NCA") provides on its official website a standard format of the Notification for Requesting Removal or Disconnection of Internet Links which Containing Infringing Contents. This form requires information from the copyright owner such as the name, domain name and IP address of the infringing website.
Accordingly, it is clear that Chinese laws and regulations have also set forth a reasonably complete provision regarding the formality requirements of a notice by the owner. If a copyright owner fails to provide a notice that satisfies all the requirements, such notice will be regarded as ineffective. The ISP may refuse to remove or disconnect the links to the infringing content on the grounds that the information provided by the notice is incomplete.
The purpose of the Safe Harbor Principle, which defines clearly the rights and obligations of copyright owners and ISPs, is to balance the interests of the said two parties. The key point is that the Chinese courts should consider carefully whether effective notification is given by the copyright owner to the ISP, and whether the ISP removes the hyperlinks to the infringing contents promptly once the notification requirements are satisfied.
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