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Intermediaries

2018

New York District Court Judge awards $6.6 million in damages to the plaintiffs in case against BTV set-top boxes. The recent case led by a group of right holders in the USA was on the grounds of illegal broadcasting of their programming. Apart from the positive judgement for right holders, this case is important due to the broad injunction granted against any third party whose services are used in connection to this illegal activity. This injunction can be enforced on any third party such as back-end service providers, routing providers, CDN (content delivery network), Internet service providers (ISPs), domain name systems (DNS), and even social media platforms; requiring them to stop services that support illegal activity. This will be an important tool for right holders since their efforts nowadays are more focused on co-operating with intermediaries while fighting online piracy.

The United States-Mexico-Canada trade agreement (USMCA), replacing the NAFTA, is expected to be signed by the end of November 2019. The agreement provides robust intermediary liability protections to websites and online platforms. The article 19.17.2 of the agreement reflects the American Communication Decency Act at a large extent, providing that ‘no Party shall adopt or maintain measures that threat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information’. This provision, depending on how it will be integrated into Canadian law by the parliament, can impact the Canadian system of intermediary liabilities. Contrary to the US, Canadian law holds websites liable for third-party content, if they know that the content is illegal. The Supreme Court of Canada ruled that Internet service providers (ISPs) can become liable when they do not take action once given notice of an infringement, in two landmark cases, SOCAN v. Canadian Association of Internet Providers and Crookes v. Newton.

The EU has been working on a new copyright directive for the last few years. The proposals for article 13 were criticised by experts for potentially forcing platform intermediaries to implement content matching technology based on a database of copyrighted works to monitor users’ content. Members of the European Parliament, after extensive public pressure, re-debated many controversial aspects of the article. However, a recent Council of Europe (CoE) document revealed that the proposal does not explicit if the existing liability protection is valid under article 13, and that there are no clear exceptions for intermediaries that make an effort to prevent copyright infringements, but inadvertently admit copyrighted content on their platforms.

On 2 November 2018, the Delhi High Court held online marketplace Darvey.com liable for selling allegedly counterfeit Christian Louboutin products. The plaintiff claimed intellectual property rights, considering the platform used the name and image of Louboutin as meta-tags to attract traffic on their platform. Darvey.com claimed that they do not sell any product, but merely enablebooking of orders through their online platform. The ruling of the court observed that when an e-commerce platform is commissioned over unlawful acts, it is no longer a mere passive transmitter or online intermediary. In the same ruling, the court required Darveys.com to present the contact information of all sellers; request certificates from sellers that their products are not counterfeits; and to notify trademark owners before having products available on the platform. The case set a relevant precedent to make clear the extent of safe-harbour possibilities under the Information Technology Act. Since the Baazee.com case-related to the sale of obscene videos, e-commerce businesses have denied liability for products uploaded by users.  

Facebook revealed it had discovered a security issue affecting millions of accounts on 25 September 2018. The attackers exploited a vulnerability in Facebook’s code that impacted 'View As', a feature that lets users see what their own profile looks like to someone else. When composing a birthday wish message with video, as of July 2017, the attacker could exploit the 'View as' option of the video uploader to get access to the profile of the user being looked up, including their login details. The access token was then available in the HTML of the page and extracted by the attackers who exploited it to login as another user. Facebook reset the access tokens of almost 50 million accounts thought to be affected, and temporarily disabled the 'View As' feature. On 12 October, Facebook announced hackers actually stole access tokens of about 30 million users, 20 million less than previously thought. For 15 million users, attackers accessed name and contact details (phone number, email, or both). For 14 million users, the attackers accessed name and contact details, as well as other details people had on their profiles, including username, gender, religion, birth date, etc. For 1 million users, the attackers did not access any information.

 

The European Parliament approved amendments to the Directive on Copyright in the Digital Single Market 2016/0280(COD), also known as the EU Copyright Directive, which intends to harmonise aspects of the copyright law across the EU. The vote included two controversial points, enshrined in Articles 11 and 13, dubbed the 'link tax' (or ‘snippet tax’) and the 'upload filter' by critics. Article 11 is intended to give publishers and newspapers a way to make money when companies like Google link to their stories. It extends the 2001 Copyright Directive to grant publishers direct copyright over "online use of their press publications by information society service providers". Search engines and online platforms, like Twitter and Facebook, will have to pay a license to link to news publishers when quoting portions of text from these outlets. The bill says that the new rights given to publishers “shall not prevent legitimate private and non-commercial use of press publications by individual users”. However, it does not make clear what counts as ‘portions of the text’ or as a commercial platform which could allegedly encompass blogs, RSS feeds, or a Facebook page operated by an individual who has a considerably large audience for example. Article 13 says that online platforms are liable for content uploaded by users that infringes copyright. It requires that platforms proactively work with rightsholders to stop users uploading copyrighted content. This could potentially mean scanning all data being uploaded to sites like YouTube and Facebook. This measure could affect memes - images or videos that spread 'virally' online, often accompanied by a witty snippet of text - and music remixes shared online. The proposal will now enter negotiations between the Council of the EU, The European Commission and the Parliament. If these three bodies agree, it will be sent to each EU member state for implementation in 2019.

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