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 mediators 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 Roter 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 copyright-infringing websites. Website of Drori - Wirzhanski - Orland law firm, the narrator of the verdict explains: "Within the paid forums maintained by Rotter.net, links are frequently posted to websites where there are infringing copies of works owned by the plaintiffs. A blackmailer 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 known as 'Downloads' and 'Movies and TV'".
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 US stated that the service provider should not be the monitor. However, the STOP ONLINE PIRACY ACT proposal is being debated 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 intermediaries becomes It is critical that the flow of information is allowed - how can this be discussed according to the assumptions of the past?"
"I read Judge Grosskopf's ruling. Let's treat the website that links to websites that violate copyrights 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 set 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 meanwhile he's using 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 e-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 intermediaries 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, isn't it a mechanism that blocks information too easily? If the investigation will have to compel the website owner to an investigation and a demand, is it at all realistic? Is it possible that when he receives a request for removal, he will remove the website or will we impose an obligation on him to remove it?"
"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 they are about to establish that joins the communications data database and other databases. It is possible 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".
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 dealing with it is an evolutionary way. It looks for cases that seem similar to it and tries to learn from them. When I formulated the judgment of Elias I had to find how I analyze the 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. It knows how to take a familiar model and know how to apply it in new contexts. It takes a long time for it to develop new models. And this is where the contribution of the legislator can be - the legislator can create the leaps and bounds."
"The situation in which this is done is through a law for the protection of integrated circuits from 1999. The law establishes an intermediate solution between patents and copyrights regarding chips. It was very difficult for the courts to develop a similar model independently. The place where I think the legislator failed is in the field of computer software. In the late XNUMXs, they decided it was like a book. It's not like a book and doesn't raise the same problems, but they included the copyright in the books and the result - the protection of the 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 have not been settled well in law. I have encountered this in three different judicial contexts that raise different problems. The tender judgment of The state, which discusses the question of what is the responsibility of a site that holds auctions towards the consumers who use its services About him? The second verdict - Diesenhuis dealt with the travel agencies. To what extent the travel agency is responsible for the defects in the services. And the third verdict - of Elis against Rutter. Although the subjects are different and there are important differences between them, there are common lines between them. The underlying 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 ranges between two poles that represent desirable goals. One pole is our desire to create an effective enforcement agent, to use the intermediary as an effective enforcement agent. In the case of Elis - Who will sue those children who download movies? The party committing the violation itself is also small and difficult to reach. The intermediate 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 intermediaries. The intermediaries have a very great economic importance. As soon as responsibility is imposed, we make the service more expensive, or sometimes remove the intermediaries from the market. On the one hand, we need to enforce, and on the other hand, not to cool the activity of the intermediate factors."
"There is no general solution. In the case of intellectual property on the Internet, at least in my opinion, this dilemma is less difficult than in other cases. There are several good reasons not to impose responsibility on the middlemen in this case. One good reason, I am not sure that it is a more effective enforcement agent than rights holders The creators themselves. It is true that this decentralizes the responsibility. In the end, the copyright holders can also join together and establish strong bodies. The second thing - there is an additional cost in the imposition of responsibility - a cost of damage to freedom The expression of the 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 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 access 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 spill the water 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 will not be, if we take responsibility They direct the activity in a very undesirable way."
"A second type of problem - to what extent do we allow the intermediary to design the nature of its activity. To what extent do we allow the intermediary to design its business model. To what extent can a website owner place ads on the website, and remove any responsibility from me, by writing in the regulations that I am not a participant in the competition And they have to be careful about copyright and defamation laws. To what extent can he resolve himself if I follow the notification and removal procedure. This procedure did not satisfy Elias, who want it will 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-Korn, 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 vs. Shokan, the court makes order on the issue of contributory responsibility that also applies in the field of copyright owners and not only to 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, as opposed to the commercial fields The others. When the Supreme Court includes the contributory responsibility on the intermediate parties, this means that a balance is required between the reward for the creator who invested in the creation and the guarantee The incentives for new works, compared to the rights of users and cultural diversity. This is a doctrine that should be contained in a reduction."
"Also in the judgment of the Hebrew University against Shokan, the judge required three cumulative conditions: the actual existence of a direct infringement; 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 , consulting, development, encouragement, imperative, permission, approval."
"There is a lack of reference to fair use. The existing reference is very problematic. The court says: "The intermediary 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 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 to the offence."
"There is a narrow concept of the permitted uses. Permitted uses are not only intended to solve trivial matters. The permitted uses are intended to ensure uses for the public benefit, to ensure uses that are essential to fulfilling the purpose of the law. To ensure uses that will be avoided due to high business costs, to ensure a proper balance between copyright and freedom of expression, To ensure breathing space for creators. Since more and more products we bought as physical products are becoming knowledge services - it is necessary to ensure access to information and consumer rights online."

"When you think about the internet provider that 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 by the mere submission of the notice, and the question of responsibility will fall on the question of the direct infringer. Is there someone who does something which the law forbids him to do."
Prof. Elkin-Koren 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, the provisions of the law are also for those who violate in practice and not for those who assist in the violation committed by others. Chapter 4 dealing with the use Fair refers to direct infringement. Giving fair use protection to an intermediary will not be effective. 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 did not exist in the early 1990s when the courts began to deal with the issue. On the one hand, it is wonderful that the Supreme Court is finally establishing a rule. In the 1990s, we became aware of the death of copyright. In the 2000s - a practice of notification and removal, in the second decade we are witnessing For 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 designated 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 minor 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 with 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 it to be uploaded. We are talking about pre-filtering done through filters in the absence of judicial review and the dangers are to freedom of expression, to reduce The fair use and also for freedom of occupation, for the ability to upload materials in general to this environment."
"The European Court of Justice ruled that an Internet provider should not be required 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 providers to consider whether there is a fair use to encourage permitted activity and prevent an effect Metzen, to prevent infringement of freedom of expression and freedom of creation, 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 Shoken ruling is that it is not possible to impose responsibility on intermediate parties when the end user does 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, recently yesterday, a judge in the US ordered the DNS providers to disconnect from the network 600 sites that imitated the Chanel site, and also demanded that Facebook, Google, Bing and Plus immediately remove links to these sites."
"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 of property rights should be much greater than it is today - for me, if I have invented something, it is 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 "nature" comes to them 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 mask of interests that prevents it. This thing hides, people cover it up, but the truth is that the banks are not ready to give up About their commissions. The World Bank came out with 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. From these worlds come other things about the desires of digital things. A poem, a story , brochure, I am the manufacturer, the artist, want to give you my product for a certain time only, use it from today for a month, after a month it is gone. I want to give Go 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 between the author and you. You are allowed as an integral part of the purchase to 10 friends. You are allowed to read the book only in the morning and in the light; you can automatically change the book without the reader can complain, it is allowed to take the product into pieces and handle each piece separately. This is the future, and anything like that will cost a tiny amount - two, three cents, because there will be a stream of income. When there is such a mechanism, it will be possible to create a premium model."

"In order for the vision to happen, we lack several mechanisms. The first is an identification mechanism. Without identification we will have nothing. Without being able to know at the DNA level who is calling. Another mechanism is a universal micropayment mechanism. This is not an exempt issue, especially cross-border, Issue of money laundering. A third mechanism is AFFILIATION which allows us to buy the book and make us an AFFILIATE. A fourth mechanism is the ability to control what the user stores In CASHING, what is allowed to be stored temporarily. There is also a need to check signatures on movies, music, and there are also signatures on the distance of text. Another mechanism is the mechanism - TERM 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.