The responsibility of the intermediate parties - websites and search engines - for copyright infringement: currently, the balance is tipped in favor of the websites

This is evident from recent judgments that were discussed as part of an academic conference at the School of Law of the College of Administration. Minister Michael Eitan: "Today the status of the intermediaries becomes critical to allow a free flow of information"

One of the common phenomena on the Internet is the copying of entire articles from news sites to forums such as Rotter or as responses to articles on other sites. Many people don't seem to trust that if they post a link, people will come in and read it.

The problem is that the owners of the sites suffer when their material appears on other sites and someone else wins from the vagrancy with quality material, and publishes ads alongside it, while it steals traffic from another site. This is the reason why I asked the Rotter website to remove complete copies of articles on the "Hidan" website, and from the regular writers there, to be content with a quote and a link.

Although the site is not responsible for what its users upload, but still as a respected site it cooperates. It turns out that the website owner does not need to activate an expensive mechanism to track copyright infringements and, moreover, it is enough for someone to notice it, in order to take down the link, it is not necessary to turn the website into a criminal.

In August of this year, the Roter site won a lawsuit filed by movie copyright owners, who were angry that forums on the site were redirecting to movie and music download sites, thereby contributing to copyright infringement.

The judge of the Central District Court, Prof. Ofer Grosskopf rejected the claim of Elis - Society for the Protection of Cinematographic Works and a battery of film companies, who demanded that a forum owner be held liable for links to websites that infringe copyrights. Website of Drori - Wirzhanski - Orland law firm, the narrator of the verdict explains: "Within the paid forums held by Router.net, links are frequently posted to websites where there are infringing copies of works owned by the plaintiffs. An extortionist of the plaintiffs specifically goes against two of the paid forums, where they claim the links to infringing websites in the field of movies are concentrated: forums called 'downloads' and 'movies and television'".
It turns out that such responsibility can be demanded, according to the ruling, if the three cumulative conditions are proven: the actual existence of a direct violation, the intermediary's awareness of the commission of the direct violation, the existence of a real and significant contribution to the commission of the violation.
To sum up, the rule is that a website owner is not liable for contributory infringement due to the presence of a link to an infringing website in the forums running on the website, unless he was notified of the presence of the link, and he did not act with the appropriate speed to remove it.

The Law School of the College of Administration held a review evening on the responsibility of intermediate parties for infringement of intellectual property rights on the Internet last week with the participation of:
Dr. Orit Fishman Apori from the Haim Strix School of Law, the College of Administration academic track; Minister Michael Eitan, the minister in charge of improving government service to the public; Judge Prof. Ofer Grosskopf from the Central District Court; Prof. Niva Elkin-Korn, Dean of the Faculty of Law and Head of the Center for Law and Technology, Haifa University; Dr. Yesha Sion, Head of the Information Systems Management Program, Tel Aviv-Yafo Academic College, member of the Israel Internet Association board.

Below is a summary of the lecturers' remarks this evening.

Dr. Orit Fishman Apori "Does the fact that they are a bottleneck justify imposing legal liability on them, and what is the policy regarding gatekeepers in copyright matters? Often, the middlemen are deep-pocketed and therefore it is justified to impose legal capacity on them because they have the ability to pay. If we impose too broad legal liability on the gatekeepers, this will harm the general public."
"A ruling from a week ago in the USA stated that the service provider should not be the monitor. However, the STOP ONLINE PIRACY ACT bill is being discussed in the US Congress, which offers burdensome obligations to network intermediaries. As we know, when there is no legislation, the court comes into action. Our goal is to discuss the question from a higher perspective. Is it better to have a law or is it better for the court to regulate or maybe the solution will be technological."

Minister Michael Eitan, who is in charge of government service to the public: In the bill that was eventually withdrawn by the Ministry of Justice, and that dealt with the protection of intellectual property, it deals with the duties and rights of the third parties on the network regarding content that someone else puts on the site. The concept is not what the intellectual property rights are but what to do with a new state of information flow on the Internet as a result of a technological revolution that has completely changed the rules, laws and balance. For example, a question about the responsibility of an Internet provider to give an IP to someone who claims that his good name has been damaged and he wants to take measures, is the same type of question about what is actually responsible for the offense committed, is it the Internet provider, the website owners, the technology providers on which the website is based?
"To what extent are we as a society willing to harm the flow of information and freedom of expression in order to protect the interests of the copyright holders established 100 years ago, which protected economic interests - a need for the enrichment of human intellectual property. But today there are completely different models. Today, when the status of the mediators becomes critical, the flow of information is allowed - how can this be discussed according to the assumptions of the past?"
"I read Judge Grosskopf's verdict. Let's treat the site that links to copyright infringing sites as someone who sold books in the university yard. The question is whether it is appropriate to make such analogies and based on them to solve the problems that appear today"
"The answer is not clear. On the one hand, it is not clear what the courts will do, why the legislator does not take action and try to understand the social and political changes of what is happening now and try to establish new laws. New situations, but on the other hand, it is also difficult for the legislator himself to gauge what is happening in front of his eyes, and in the meantime he uses analogies from the old world until we can design new laws."
"An experience I had when I sat in the Knesset when I was the chairman of the committee that discussed the legislation of the electronic commerce law prepared by the Ministry of Justice - there was a conflict of perception between us as members of the Knesset and the Ministry of Justice. The result was that they withdrew the word of the legislation and left the area without innovative concepts that could shape far-reaching changes in the field of legislation."
"One of the questions that arises on the topic of intellectual property violations regarding those intermediary parties is the notification and removal mechanism, is it good or bad, but the mechanism actually comes to answer the situation in which the website owner or someone who has the ability to influence receives a notification of a violation and then has to carry out the removal . There is a solution regarding the matter of the news, but the question is how effective is the mechanism in terms of the flow of information, are they not producing a mechanism that blocks information too easily? Example - YouTube that tends to download suspicious movies immediately upon arrival of the message, if the investigation has to oblige the website owner for an investigation and a demand, is this even realistic? Is it possible that we will make him responsible that when he receives a request for removal he will remove Valanter or will we make him obliged to remove?"
"There are rights that are violated, such as privacy and the exploitation of technology by the state, and one of the examples that outrages me is the biometric database that is about to be established, which joins the communications data database and other databases. It may be that the world will accept these things on a normative level and we will get a world where Orwell is a joke compared to the situation we will reach. On the other hand, we are in places where there is a lot of use of restrictions on the flow of information and part of this is in the field of intellectual property. The legislator is faced with a broken trough and does not know what the solution is."
Judge Grosskopf: "There is a division of duties between the courts and the legislature: when a court encounters a new situation, its main way of coping is an evolutionary way. He looks for cases that seem similar to him and tries to learn from them. When I formulated the judgment of Elis I had to find how I analyze the situation. The model that was developed a few months before in the judgment of the Hebrew University against Shokan - the Supreme Court that discussed the issue of a physical property owner for violations of intellectual property carried out on its territory. I took the meaning to the Internet."
"It has one notable limitation - the court does not know how to make leaps and bounds. He knows how to take a familiar model and knows how to apply it in new contexts. It takes him a long time to develop new models. And here can be the legislator's contribution - the legislator can create the breakthroughs."
"The situation in which this is done is through a law for the protection of integrated circuits from 1999. The law provides an intermediate solution between patents and copyrights regarding chips. It was very difficult for the courts to develop a similar model independently. Where I think the legislature has failed is in the area of ​​computer software. In the late eighties, they decided it was like a book. It is not similar to a book and does not cause the same problems, but they contained the copyrights in the books for software and the result - the protection of software is not optimal."
"In this issue, the issue of intermediary liability, this is one of the most important and most innovative questions we encounter. It is not so clear why, these are issues that were not well settled in the trial. I have encountered this in three different judicial contexts that raise different issues. The state's auction ruling, which discusses the question of what is the responsibility of a site that holds auctions towards the consumers who use its services. There is a final supplier, the supplier of the goods, and there is the intermediate factor - what is the degree of responsibility imposed on him? Second verdict - Diesenhuis who dealt with the travel agencies. To what extent is the travel agency responsible to its customers for defects in the services. And the third judgment - of Elis against Rutter. Although the subjects are different and there are important differences between them, there are common lines between them. The basic problems are more or less the same problems that receive different treatment."

"The first issue that arises in all situations is how much responsibility is placed on the intermediary for the actions of another. The dilemma oscillates between two poles representing desired goals. One pole is our desire to create an effective enforcement agent, to use the intermediate agent as an effective enforcement agent. In the case of Alice - who will sue those children who download movies? The party committing the violation itself is also small and difficult to reach. The intermediary factor - the site where the posts are placed is a significant factor, which is easy to reach, through which it is possible to achieve deterrence or enforcement of copyrights in a more effective way."
"But in contrast to the benefit there is a very clear harm - the cooling of the activity of the middlemen. The intermediate factors have a very great economic importance. As soon as responsibility is imposed, we make the service more expensive, or sometimes take the middlemen out of the market. On the one hand, we need to enforce, and on the other hand, not to cool down the activity of the middlemen."
"There is no general solution. In the case of Internet intellectual property, at least in my opinion, this dilemma is less difficult than in other cases. There are several good reasons not to hold the middlemen responsible in this case. One good reason, I'm not sure is a more effective enforcement agent than the copyright holders themselves. It is true that it decentralizes responsibility. In the end, copyright owners can also join together and establish strong entities. The second thing - there is an additional cost beyond the economic cost of imposing responsibility - a cost of harming the freedom of expression of internet users. As soon as the website owner has to monitor - there is his intervention, you have to be more careful about what is done, there is a kind of censorship."
"A third consideration for the importance of the intermediaries on the Internet: they are the main factor that allows this system to work. There is endless information, there are users who want to get to the information and their way to filter the information is always to go through intermediaries. The role is critical that if we prevent their activity we may throw out the bathwater with the baby. The fourth reason not to intervene - we don't really know where this thing is going, where the internet is going to go, what will be important and what won't, what models will develop in it. If we take responsibility, we direct the activity in a very undesirable way."
"A second type of problem - to what extent we allow the intermediary to shape the nature of his activity. To what extent the middleman is allowed to shape his business model. To what extent can a site owner place ads on the site, and remove any responsibility from me, by writing in the regulations that I am not a subject in the competition and they have to adhere to copyright laws and defamation laws. To what extent can it resolve itself if I follow the notification and removal procedure. This procedure did not satisfy Alice, who wants him to be more active.
"A dealer is allowed to define what he does and does not do. Every dealer has the right to choose the business model in which he operates. The starting point should have two caveats - you should be tested not by what you declare but by what you do. The real test is not what you declare but what you actually give. The second caveat says - there are business models that are invalid, because they take advantage of cognitive biases - a very simple example is the pyramid marketing model."
"The same when a person builds a business model that is built entirely on the violation of copyrights, and this is my explanation for the invalid forum stipulation in the Elias ruling. If there is a situation where a website maintains a forum where all activity is copyright activity, I want to see."
Prof. Niva Elkin-Corn, Faculty of Law, University of Haifa: "We are talking about information brokers, so the question is how will we conduct ourselves in a critical area in the 21st century?"
"In the decision of the Supreme Court in the case of the Hebrew University against Shoken, the court makes an order on the issue of contributory responsibility that also applies in the area of ​​copyright owners and not only of the owners of real estate rights. and creates an effective normative framework to discuss the issues of imposing responsibility on intermediaries in the information field, unlike the other commercial fields. When the Supreme Court contains the contributory responsibility on the intermediate parties, this means that a balance is required between rewarding the creator who invested in the creation and ensuring the incentives for new creations, compared to the rights of the users and the cultural diversity. This is a doctrine that should be limited."
"Even in the judgment of the Hebrew University against Shokan, the judge demanded three cumulative conditions: the actual existence of a direct violation; The donor's knowledge of the direct infringement committed (actual knowledge is required but not concrete knowledge of each infringing copy) and a significant, substantial and real contribution to the commission of the infringement - assistance, advice, development, encouragement, command, permission, approval."
"There is no reference to fair use. The existing reference is very problematic. The court says: "The intermediary party may be responsible for the infringing actions carried out by the users even if they themselves benefit from the protection of fair use". On the other hand, the court suggests allowing the intermediary to benefit from the protection of fair use. Another point - this is a defense claim that is not of interest to the violation itself - although each of the users does an act protected by the law, the combination of all of them causes an offense."
"There is a narrow concept of the permitted uses. Permitted uses aren't just meant to solve little things. The permitted uses are intended to ensure uses for the public benefit, to ensure essential uses in order to fulfill the purpose of the law. Ensure uses that are prevented due to high business costs, ensure a proper balance between copyright and freedom of expression, ensure breathing space for creators. Since more and more products we bought as a physical product are becoming knowledge services - it is necessary to guarantee access to information consumers and online consumer rights."

"When you think about the Internet provider who will have to consider whether or not to allow activity within the framework of the doctrine of contributory responsibility as formulated by the court, you need to ensure that the conditions are contained - the knowledge will be established from the very submission of the notice, and the question of responsibility will fall on the question of the direct infringer. Is there anyone doing something that the law forbids him to do."
Prof. Elkin-Corn also refers to the protection of fair use for intermediaries: "The protection of fair use for intermediaries is a legal error, inconsistent with the language of the law, also the provisions of the law are for those who actually violate and not for those who assist in the violation committed by others. Chapter IV dealing with fair use refers to direct infringement. Providing fair use protection to an intermediary will not be effective. The fair use will be biased against commercial use, the responsibility of the intermediaries is based on the prohibited actions of others."
Enforcement through intermediaries
"The challenges I see for enforcement in the current decade that did not exist in the early nineties when the courts began to deal with the issue. On the one hand, it is wonderful that the Supreme Court finally establishes a halachic law. In the nineties we became aware of the death of copyright. In the XNUMXs - a practice of notification and removal, in the second decade we are witnessing the beginning of the era of computerized enforcement - computerized detection of violations."
"The notification and removal mechanism that allows for the immediate blocking of effective content, adopted by us in Israeli legislation, allows for targeted removal without considering the user's real right to display the content. In a world where we see more centralization of content providers, it is impossible to solve the issue as a trivial issue, if the Internet provider removes even before considering whether the use is fair or not, we are facing a situation where an end user will not be able to sue the Internet provider."
"The problem is more serious in the automatic systems. YouTube is equipped with the digital DNA of the protected works, and its engines check whether anyone even intends to upload the work, and does not even allow uploading. We are talking about pre-filtering done through filters in the absence of judicial review and the dangers both to freedom of expression, to the reduction of fair use and also to freedom of occupation, to the ability to upload materials in general to this environment."
"The European Court of Justice ruled that an internet provider should not be obliged to install a filter to prevent infringing downloads of copyrighted works. The requirement to install an expensive and complex system may disproportionately harm the Internet provider's freedom of business. Installing a filter may harm users' rights to privacy and freedom of expression."
"When we browse the network connecting information about the end user, control of the distribution pipeline and control of the content is a connection that can be very dangerous, therefore in a centralized environment it seems to me that from the narrow aspect of intellectual property law, the challenge is to restore fair use to the doctrine of total responsibility by correcting the error that was made in the courts, but Also in the creation of mechanisms that will oblige the suppliers to consider whether it is possible to consider whether there is fair use. To encourage permitted activity and prevent a chilling effect, to prevent damage to freedom of expression and creative freedom, to oblige suppliers to consider whether there is fair use and to allow it, to oblige rights holders to consider whether there is fair use before filing the complaint. The small-big mistake in the Shokan ruling is that it is not possible to impose responsibility on intermediate parties when the end user makes fair use."
Dr. Yesha Sivan: "The distance between law and technology is very large. In technology, there are many options that are not exploited from a legal point of view, but the distance is still smaller than what the business entity in the organization wants from the technology. For example, as recently as yesterday, a judge in the USA ordered the DNS providers to disconnect from the network 600 websites that imitated the Chanel website, and also demanded that Facebook, Google, Bing and Plus immediately remove links to these websites."
"We are in an era where digital products are becoming significant and a large part of the modern economy is an economy of virtual products. Hence the strong significance of controlling this knowledge. The control over property rights should be much greater than it is today - as far as I'm concerned, if I invented something, it's for life, forever, as the products become more and more important, I need more incentives for people to sit and influence them. You see this in pharmaceutical companies, whose income from ethical drugs is decreasing because they have no protection because "Teva" is coming at them with batteries of lawyers. No one develops a cure for orphan diseases."
"To this day, twenty or so years into a huge internet, we have no real capacity for micro payments. Why doesn't it exist? There is a whole spectrum of interests that prevents it. This thing hides, people wrap it up but the truth is that the banks are not willing to give up their commissions. The World Bank issued a suitable report on the impact of virtual economies on the world. That's why I say, before we discuss the responsibility of the middlemen, we need to ask what our responsibility is."
"There is a commitment to the legal and technological infrastructures to allow creators to realize their desires. It is very easy to sit at Harvard and write about a free society. We have desires and technological mechanisms. I have been researching virtual worlds for many years. Out of these worlds come other things about desires of digital things. A poem, a story, a booklet, I am the producer, the artist, I want to give you my product for a certain time only, you will use it from today for a month, after a month it is gone. I want to let you use it exclusively in these coordinates of Rishon LeZion."
"Secondly, you can only read this book with another friend. It happens, today there is a company called IMVU that downloads music only if you play it to two friends. You can make changes of types A and B. You also get the right to sell the book once but the income is split half and half between the author and you. You are allowed as an integral part of the purchase of the right to distribute to 10 friends but not to them. It is allowed to read the book only in the morning and in the light; You could automatically change the book without the reader being able to complain, it is allowed to take the product, disassemble it into pieces and treat each piece separately. This is the future, and anything like that will cost a tiny amount - a cent, two, three, because there will be a stream of income. When there is such a mechanism, it will be possible to create a premium model."

"For the vision to happen, we lack some mechanisms. The first is an identification mechanism. Without identification we will have nothing. Without being able to know at the DNA level who is reading. Another mechanism is a universal micropayment mechanism. It is a non-exempt issue, especially a cross-border one, an issue of money laundering. A third mechanism is AFFILIATION which allows us to buy the book and sell it making us an AFFILIATE. A fourth mechanism is the ability to control what the user stores in CASHING, what is allowed to be stored temporarily. It is still necessary to develop DNA - signature testing. Today there are signatures on movies, music, text and there are also signatures on the distance of text from text. Another mechanism is tracking purchase history. Another mechanism is the TERM mechanism that we can automatically decide what will happen after a month, two months, etc. and what happens to the rights when the writer or the buyer dies." Sivan concludes.