中国法律博客
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Coming Soon to a China Courtroom Near You
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I've been posting a lot of sarcastic silliness today, so perhaps something substantive to round things off will help to redeem me in the eyes of all three of my readers.

A huge ongoing issue in cyber-litigation is liability for platform operators. Litigation has hit Google, Yahoo, Baidu and others over various intellectual property infringement issues, such as linking to MP3 files, providing search platforms for copyright infringing video files, etc.

What's going on in the rest of the world? Here's a recent case from the U.S. that gives us a good snapshot:

A New York federal judge ruled Monday in a lawsuit brought by Tiffany that the online auction site, eBay, is not required to police its site for counterfeited goods.

If you ask people to come up with a reasonable standard, I think most folks would say that a site like eBay cannot review each customer's goods to determine authenticity – the volume of transactions makes this impossible. Most folks would also say, I believe, that there also must be some duty of care whereby these platform operators have to respond when they become aware that infringing products are being sold by using that platform.

Striking this very reasonable balance is where the U.S. law is at the moment:

"The law does not impose liability for contributory trademark infringement on eBay for its refusal to take such preemptive steps in light of eBay’s 'reasonable anticipation' or generalized knowledge that counterfeit goods might be sold on its website. Quite simply, the law demands more specific knowledge as to which items are infringing and which seller is listing those items before requiring eBay to take action," U.S. District Judge Richard Sullivan wrote (.pdf) Monday in a lawsuit brought by the upscale jeweler.

This was from a decision made a couple of weeks ago, and sounds quite reasonable to me. eBay made out pretty well in that case because it was determined that reasonable measures were taken to stop the infringing activity once eBay received notification what was going on.

Any difference with the law in other countries? Yeah, there's this:

The decision, however, contradicts a French court's demand last month requiring eBay to pay $63 million to Louis Vuitton, the luxury good maker that claimed eBay failed to police adequately its auction site for Louis Vuitton knockoffs.

Sounds quite contradictory, and is to a certain extent (I haven't read the French case, though, so no formal comment on that). The question is, of course, just what constitutes adequate policing. When you are dealing with a lot of products, it would be tough to demand some sort of real-time search of everything. Notification is necessary.

But what about digital media?

With regard to copyrighted media, courts could look for example at take-down policies. How long does it take for offending links or files to be removed upon request? However, courts can also require a higher standard for digital media as it is easier for sites to filter out infringing links than police against infringing products.

But again, what constitutes adequate take-down systems and other kinds of policing, and does this change over time? As computing power increases, as anti-infringement software makes identification easier, and as we start to integrate AI into systems, the bar will continue to be raised as to what is reasonable and what technology industry should be forced to adopt to fight infringement. This is an issue in the Viacom-Google suit:

Viacom, in it's pending $1 billion U.S. copyright lawsuit against Google, is making the same argument as did Tiffany. For its part, Google has argued a similar defense to Viacom's accusation that Google is an "unlawful business model." Google says it respects rights holders and complies with their take-down notices.

In October, Google-owned YouTube announced a content-filtering system to make it easier for rights holders to police their copyrights on the popular video-sharing site.

But that did not deter Viacom's lawsuit.

Two weeks ago, a federal judge ordered Google to turn over records of every video watched by YouTube users, including users' names and IP addresses, to Viacom, which is suing Google for allowing clips of its copyright videos to appear on YouTube.

Viacom wants the data to prove that infringing material is more popular than user-created videos.

Looks like Google has done some things to stop infringement, but is it enough? If data shows that an overwhelming percentage of content is infringing, the court will have a tough decision to make regarding the fundamental business model at issue. What will this mean to video sharing sites, file sharing sites in general, and other platforms that can be used for all kinds of purposes?

In China, we are still dealing with deep links, specifically links to MP3 files. Current copyright law (as of 2006) caught Yahoo! recently, and now the music industry is going after other sites. In the Yahoo! case, there was certainly more going on than simple deep linking, which in this instance just means a direct link to the file as opposed to the site on which the file is posted. A lot of these platforms have music search services, which makes it difficult to argue that they have no knowledge of the infringing activity.

Take-down policies are not enough, and industry is arguing that a lot more should be required of these site operators. And they seem to be winning using China's copyright law, at least with respect to MP3 files.

Now that the age of video file sharing has come to China, which even has its own special licensing scheme recently instituted by government regulators, we'll have to see what requirements will be considered adequate. Take-down policies? Video filtering software? Stay tuned.