Intermediary Liability in A Global World: Prof. Dr. Matthias Leistner, LL.M. (Cambridge)

Intermediary liability in a global world
Prof. Dr. Matthias Leistner, LL.M. (Cambridge)
Professor and GRUR Chair for Civil Law and Intellectual Property Law with Information Law and IT-Law at Ludwig
Maximilian University (LMU), Munich. The author thanks his Senior Research Assistant, Dr. iur. Patrick Zurth, for valuable help
in collecting and structuring the case law and literature references to this paper.
mail: sekretariat.leistner@jura.uni-muenchen.de; phone: +498924246409
8.1 Introduction
This article attempts to propose certain principles and standards as building blocks for a
future international law approach to intermediary liability in a global world. This raises a
number of questions. Is a copyright targeted, area specific approach to intermediary liability
warranted? Should there be a principled distinction between (primary) infringement and
(secondary) indirect liability? And if so, which are the central elements of indirect
intermediary liability? To which extent do the existing safe harbour provisions converge on a
global scale? And how could they be improved? Should there be a third level of accountable,
but not liable intermediaries, against whom orders to co-operate in the enforcement of
copyrights could be directed?
Apart from these comparatively specific, substantive law questions, another more general,
methodological question comes to mind. Which degree of uniform international regulation or
acquis does exist in regard to the above mentioned issues and which degree of harmonisation
seems reasonable and realistic as a goal for the future? No straightforward, general answer to
this question seems possible. Instead, each of the substantive law questions above has to be
assessed differently in this respect. However, in regard to the specific field of intermediary
indirect liability, which is not yet harmonised on the international level, the following
considerations will show that only a very light touch, pluralist approach seems possible and
reasonable at the moment. Hence, at best, this article can try to identify certain very general
principles and standards, which might form tentative building blocks for a future approach to
intermediary liability in international law.
Even this is a considerable challenge. The following comparative law analysis will be
limited to two major jurisdictions: U.S. law on the one hand, and EU law on the other. This is
not only because of the economic relevance of these two regions, but also because of the
particularly instructive differences between the two systems. Even within this very limited
scope of analysis, two additional challenges will have to be faced: Firstly, intermediary
liability is only partially harmonised in EU law; hence the multi-level structure of the EU
legal system has to be taken into account. In this context, secondly, EU law’s specific aim to
establish a unitary market throughout the Member States has undoubtedly influenced some of
Electronic copy available at: https://ssrn.com/abstract=3345570

the CJEU’s case law in the field; accordingly, the ratio of the CJEU judgments often goes
beyond mere impeccably pure copyright considerations and also reflects unitary market
objectives.
Asian law and other jurisdictions will not be analysed, as a comprehensive analysis would
not have been possible within the limited framework of this article. However, from this
author’s viewpoint, which is based on the knowledge drawn from several English and German
language comparative law publications, translated judgments, and also from several research
theses, which the author has supervised, the fundamental principles and standards, which are
proposed in the last part of this article, should also reasonably reflect the approach to
intermediary liability in the major Asian jurisdictions.
8.2 Direct infringement in a comparative law perspective

8.2.1 US Law – General principles and distinction between (primary) infringement and
secondary liability
In US law, after an initial phase of early case law blurring the line between primary
infringement and secondary (indirect liability) 1, meanwhile, the distinction between these two
forms of liability is clearly established for online intermediaries as a result of the influential
Netcom case.2
More recent cases on intermediary liability have upheld the criterion of volitional conduct
as condition of primary infringement.3 This has to be understood as a degree of proximate
causation, which can reasonably be described as direct cause, i.e. affirmative action that
directly results in the infringing act. Hence, direct infringement requires that the defendant
initiates and controls the act of infringement. 4 By contrast, merely acting passively at the
direction of users in managing a system, which the users utilise to post infringing works, does
not lead to direct infringement. 5
If the requirements for direct infringement are not met, secondary liability can only be
established under the distinct heads of contributory liability (including inducement) and
vicarious liability.6
1 See the early case law on the Bulletin Board System (BBS) providers, Playboy Enterprises, Inc. v. Frena, 839
F. Supp. 1552 (Dist. Court, M.D. Fla. 1993); Sega Enterprises Ltd. v. MAPHIA, 857 F. Supp. 679, 686 (Dist. Court,
N.D. Cal. 1994).
2 Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361, 1368 et seq.
(Dist. Court, N.D. Cal. 1995). See further Stefan Kulk, Internet Intermediaries and Copyright Law (Ridderprint
2018) 238 et seq. with comprehensive references on the earlier case law and the development since then.
3 Perfect 10, Inc. v. Giganews, Inc., No. 15-55500, p. 3 et seq. (9th Cir. 2017).
4 E.g. American Broadcasting Cos., Inc. v. Aereo, Inc., 573 U.S. ___ (2014): direct infringement through live and
time shifted streaming of TV programmes on the internet.

5 Perfect 10, Inc. v. Amazon, No. 06-55405 (9th Cir. 2007); Perfect 10, Inc. v. Giganews, Inc., No. 15-55500, p. 18
(9th Cir. 2017).

6 See further infra 8.3.1.1.

8.2.2 EU Law – General principles
In EU law the situation is less clear. Recent judgments of the CJEU on the right of
communication to the public (Art. 3 InfoSoc-Directive) have established a very broad concept
of infringement which on principle encompasses both, proximate as well as distant causation. 7
Hence, cumulative infringement by a directly acting party (the user) and at the same time by a
third party (the intermediary), is conceivable in European law. 8 The reason for this remarkable
expansion of the communication to the public right is specific to the European multi-layered
legal system with its underlying unitary market objective. While copyright primary
infringement (as well as provider safe harbours) are fully harmonised on the European level,
secondary (indirect) liability is not. Therefore, to achieve the goal of establishing a level
playing field for internet use in the EU, the CJEU effectively had no choice but to extend the
realm of primary infringement in order to achieve reasonably effective harmonisation of
intermediary liability in Europe. 9
This now raises the topical question whether the Court will (re-)establish the fundamental
distinction between primary infringement and secondary liability for more or less proximate
and deliberate acts on the one hand, and comparatively distant and neutral acts, on the other,
within this new broad infringement concept, or whether the Court will indeed follow a
unitary, broad concept of infringement centred on the general, indiscriminate conditions of
knowledge or a violation of a duty of care. 10
7 Case C-160/15 GS Media (2016) ECLI:EU:C:2016:644; Case C-527/15 Filmspeler (2017) ECLI:EU:C:2017:300;
Case C-610/15 The Pirate Bay (2017) ECLI:EU:C:2017:456; cf. also the older case law in Case C-162/10
Phonographic Performance Ltd. v Ireland (2012) ECLI:EU:C:2012:141. See comprehensively Matthias Leistner, Is
the CJEU Outperforming the Commission? (November 26, 2017), available at:
<https://ssrn.com/abstract=3077615>, accessed 12 February 2019; Ansgar Ohly, ‘The broad concept of
“communication to the public” in recent CJEU judgments and the liability of intermediaries: primary, secondary
or unitary liability?’ GRUR Int. 517 (2018) both with further references; cf. under a comparative law perspective
in particular regard to hyperlinks Jane C. Ginsburg and Luke Ali Budiardjo, ‘Liability for Providing Hyperlinks to
Copyright-Infringing Content: International and Comparative Law Perspectives’, 41 Colum. J.L. & Arts 153, 160
et seq. (2018), addressing the direct liability concept of European law.
8 Cf. CJEU Case C-431/09 Airfield v. SABAM (2011) ECLI:EU:C:2011:648 para. 51 et seq., 69 & 70: in a co-
operative satellite broadcast, both, the direct or indirect actions of the broadcasting organizations as well as
the actions of a satellite package provider, who offers an own service to a receptive public, fulfill the conditions
of the communication to the public right; hence, although, both acts, technically, constitute an indivisible act of
use, legally each one of them must be regarded as constituting a single communication to the public; Matthias
Leistner, Is the CJEU Outperforming the Commission? (November 26, 2017) 4 et seq., available at:
<https://ssrn.com/abstract=3077615>, accessed 12 February 2019
9 See expressly Opinion of AG Szpunar in Case C-610/15 The Pirate Bay (2017) para. 3; see also Ansgar Ohly,
‘The broad concept of “communication to the public” in recent CJEU judgments and the liability of
intermediaries: primary, secondary or unitary liability?’ GRUR Int. 517, 522 (2018); Jan Bernd Nordemann,
‘EuGH-Urteile GS Media, Filmspeler und ThePirateBay: ein neues europäisches Haftungskonzept im
Urheberrecht für die öffentliche Wiedergabe‘, GRUR Int. 526, 532 (2018).
10 See similary Stefan Kulk, Internet Intermediaries and Copyright Law (Ridderprint 2018) 291; comprehensively
Matthias Leistner, ‘Is the CJEU Outperforming the Commission?’ (November 26, 2017), available at:
<https://ssrn.com/abstract=3077615>, accessed 12 February 2019.

One of the most recent judgments of the CJEU, the Renckhoff judgment11, seems to suggest
that the Court might opt for the first of these two possibilities. In Renckhoff, the Court – albeit
within the awkward framework of its ‘new public’ requirement for secondary
communications – established what might effectively be called a European ‘server’-test for
posting material on the internet.12 When the defendant uploads material on its own server to
post it autonomously on the internet, and thus acts deliberately in a central, indispensable role,
direct infringement is strictly applicable and does not depend on additional criteria.13 By
contrast, in cases of indirect liability (mere causation of infringement by third parties), such as
by hyperlinking to illegal material14, indexing services15 and provision of infrastructure16, the
Court applies a more complex test. This test centres around the conditions of (partly
presumed) knowledge or a violation of reasonable and proportionate duties of care,
complemented with a set of further interdependent criteria (such as for-profit nature of the
activity in question, the central role of the intermediary and other), to establish (what might be
called indirect) infringement.17
Hence, it seems that a principled distinction between direct infringement and indirect
infringement might indeed be (re-)established by the Court in the future – although without
strictly distinguishing between (primary) infringement and (secondary) liability. Instead it
seems the Court will merely differentiate the respective conditions of liability within the
broad unitary infringement concept developed in the case law on Art. 3 InfoSoc-Directive.
11 Case C‑161/17 Land Nordrhein-Westfalen v. Renckhoff (2018) ECLI:EU:C:2018:634.

12 Cf. Case C‑161/17 Land Nordrhein-Westfalen v. Renckhoff (2018) ECLI:EU:C:2018:634 para. 29 et seq.
13 At least this is the way we understand Land Nordrhein-Westfalen v. Renckhoff in the light of previous case
law, see Matthias Leistner and Ansgar Ohly, ‘Direct and indirect copyright infringement:
proposal for an amendment of Directive 2001/29/EC (InfoSoc Directive)’, available at:
<https://doi.org/10.1093/jiplp/jpy182>, accessed 12 February 2019 (to be published in JIPLP 2019); see for an
overview The IPKAT, ‘General rules on direct and indirect liability for copyright infringement instead of Art. 13’
(2018), available at <http://ipkitten.blogspot.com/2018/12/general-rules-on-direct-and-indirect.html> ,
accessed 26 February 2019.
14 Case C-160/15 GS Media (2016) ECLI:EU:C:2016:644. For links to legal material (and other situations of
secondary communication with the same technical means, such as certain cases of retransmission), the Court
has developed the contentious ‘new public’-requirement, which today effectively excludes any kind of
hyperlinks to material, which was freely available on the internet with the consent of the author, from the
scope of the communication to the public right, see Case C‑466/12 Svensson v. Retriever Sverige AB (2014)
ECLI:EU:C:2014:76 paras. 24 et seq.; Case C‑348/13 BestWater (2014) ECLI:EU:C:2014:2315 paras. 14, 18; Jane
C. Ginsburg and Luke Ali Budiardjo, ‘Liability for Providing Hyperlinks to Copyright-Infringing Content:
International and Comparative Law Perspectives’, 41 Colum. J.L. & Arts 153, 161 et seq. (2018).
15 Case C-610/15 The Pirate Bay (2017) ECLI:EU:C:2017:456.
16 Case C-527/15 Filmspeler (2017) ECLI:EU:C:2017:300.
17 Matthias Leistner and AnsgarOhly, ‘Direct and indirect copyright infringement:

<https://doi.org/10.1093/jiplp/jpy182>, accessed 12 February 2019 (to be published in JIPLP 2019); see for an
overview The IPKAT, ‘General rules on direct and indirect liability for copyright infringement instead of Art. 13’
(2018), available at <http://ipkitten.blogspot.com/2018/12/general-rules-on-direct-and-indirect.html>,
accessed 26 February 2019; see further Ansgar Ohly, ‘The broad concept of “communication to the public” in
recent CJEU judgments and the liability of intermediaries: primary, secondary or unitary liability?’ GRUR Int.
517, 517 et seq. (2018).

8.2.3 Clear cases v. borderline cases
Although the conceptual framework is thus rather different between US law and European
law, hitherto the results are similar at least for certain clear cases of direct infringement or
mere potential secondary liability.
Examples of such clear case examples in regard to the communication to the public right
include broadcasting as well as streaming on the internet, which are both effectively treated as
direct infringement. 18 Also, as regards mere transparent hyperlinking to third servers,
compared to the display of protected material, based on copies uploaded to a server controlled
by the infringing party, the recent Renckhoff judgment of the CJEU 19 and the earlier
judgments in Svensson20 and BestWater 21 (for hyperlinks to legal sources) effectively
establish a standard, which in result vaguely reminds of the 9th Cir.’s server test.22
To be sure, considerable differences remain with regard to other hyperlinking cases: thus,
for hyperlinking to illegal sources, the European GS Media standard23 – even in a secondary
liability interpretation24 – is considerably stricter than the 9th Cir.’s standard in Perfect 10 v.
Amazon. Also certain specific hyperlinking techniques, in particular inline linking, remain
contentious, since in these cases the courts (on both sides of the Atlantic) have applied an
under-complex, too technological approach, which does not sufficiently take into account a
functional perspective in regard to the actual user experience in such cases.25 All in all, the
18 American Broadcasting Cos., Inc. v. Aereo, Inc., 573 U.S. ___ (2014); Case C‑607/11 TVC/ITV (2013)
ECLI:EU:C:2013:147: any communication to the public via a new, specific technical means different from that of
the original communication must be authorised by the right holder (para. 24 et seq.), and there is no need to
apply additional conditions, such as the condition of a new public or the additional, flexible and interdependent
assessment factors, in such cases (cf. para. 39).
19 Case C‑161/17 Land Nordrhein-Westfalen v. Renckhoff (2018) ECLI:EU:C:2018:634.
20 Case C‑466/12 Svensson v. Retriever Sverige AB (2014) ECLI:EU:C:2014:76 on the basis of the highly
contentious ‚new public‘-criterion, which in any case has to be read in a normative way, cf. Matthias Leistner,
‘Weiterübertragungsfälle zwei Jahre nach Ramses – Eine kritische Bestandsaufnahme vor dem Hintergrund der
EuGH-Rechtsprechung zum Recht der öffentlichen Wiedergabe’ CR 818, 822 et seq. (2017, in German language);
also Matthias Leistner, ‘Is the CJEU Outperforming the Commission?’ (November 26, 2017), available at:
<https://ssrn.com/abstract=3077615>, accessed 12 February 2019; see for a critique of the criterion Opinion of
the ALAI Executive Committee, available at: <http://www.alai.org/en/assets/files/resolutions/2014-opinion-
new-public.pdf>, accessed 14 February 2019; ALAI Report and Opinion on a Berne-compatible reconciliation of
hyperlinking and the communication to the public right on the internet, available at:
<http://www.alai.org/en/assets/files/resolutions/201503-hyperlinking-report-and-opinion-2.pdf>, accessed 14
February 2019.
21 Case C‑348/13 BestWater (2014) ECLI:EU:C:2014:2315.
22 Cf. Perfect 10, Inc. v. Amazon, No. 06-55405 (9th Cir. 2007) p. 15458 et seq.
23 Case C-160/15 GS Media (2016) ECLI:EU:C:2016:644.
24 See Matthias Leistner, ‘Case annotation CJEU C-160/15 GS Media’, ZUM 980 (2016) (in German); further
Matthias Leistner, ‘Closing the book on the hyperlinks: brief outline of the CJEU’s case law and proposal for
European legislative reform’ 39 E.I.P.R. 327 (2017); see also Matthias Leistner, ‘Is the CJEU Outperforming the
Commission?’ (November 26, 2017) p. 10, 13, available at: https://ssrn.com/abstract=3077615, accessed 12
February 2019.
25 In the U.S. not all courts have followed the ‚server-test‘ of the 9th Cir., cf. e.g. The Leaders Institute LLC et al.
v. Jackson et al., No. 3:2014cv03572 - Document 167 (N.D. Tex. 2017) for inline links; however, following the

treatment of different forms of hyperlinks is certainly not one of the clear cases, but instead is
an example in point of a remaining borderline case in regard to the scope of primary liability
on a global scale and even within the most influential jurisdictions. 26
As for different kinds of access and other mere transmitting or routing providers, again the
different standards lead to partly converging results (at least as regards strict primary
liability). Hence, access providers or mere infrastructure providers will generally be treated
as mere indirect infringers, if the necessary preconditions of such indirect liability are met.27
From a policy perspective the most contentious case group concerns the liability of so-
called online content sharing services, i.e. platforms such as YouTube, Instagram, Flickr or
comparable services. While case law in the U.S. shows a tendency to treat such services as
mere indirect infringers (if at all) 28, in Europe the situation is less clear. 29 In fact, two recent
preliminary references to the CJEU by the German Federal Court of Justice, concerning,
firstly, YouTube30 and, secondly, a sharehoster with a more ‘active’ business model31, will
soon lead to additional legal clarity in case law. However, at the same time on the policy level
the heatedly debated Art. 13 of the Proposal for a Directive of the European Parliament and of
9th Cir. Flava v. Gunter (7th Cir. 2012); in Europe, academic literature has criticised the CJEU’s case law on
inline linking (see Matthias Leistner, ‘Closing the book on the hyperlinks: brief outline of the CJEU's case law and
proposal for European legislative reform’, 39 E.I.P.R., 327, 329 et seq. (2017) with further references), and the
German Federal Court of Justice expressly tended to regard frame links as communication to the public (see
BGH (German Federal Court of Justice), Beschl. v. 16.5.2013, GRUR 2013, 818 paras. 23 et seq.) before being
overruled by the CJEU, see Case C‑348/13 BestWater (2014) ECLI:EU:C:2014:2315 paras. 17 et seq. For a
comprehensive comparison see Jane C. Ginsburg and Luke Ali Budiardjo, ‘Liability for Providing Hyperlinks to
Copyright-Infringing Content: International and Comparative Law Perspectives’, 41 Colum. J.L. & Arts 153, 219
et seq. (2018).
26 Cf. also Matthias Leistner and Ansgar Ohly, ‘Direct and indirect copyright infringement:

<https://doi.org/10.1093/jiplp/jpy182>, accessed 12 February 2019 (to be published in JIPLP 2019) (political
decision required).
27 Case C-610/15 The Pirate Bay (2017) ECLI:EU:C:2017:456; Case C-527/15 Filmspeler (2017)
ECLI:EU:C:2017:300 (which, within the new broad infringement concept, both apply the more qualified test for
indirect causation); cf. for U.S. law: Luvdarts LLC, et al v. AT&T Mobility, LLC, et al, No. 11-55497 (9th Cir. 2013);
BMG Rights Mgmt (US) LLC v. Cox Comm’ns Inc., No. 17-1353, 2018 WL 650316 at *8--*11 (4th Cir. 2018).
28 UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 No. 09-55902 (9th Cir. 2011); Viacom
International Inc et al v. YouTube Inc et al, 676 F.3d 19 No. 13-1720 (2nd Cir. 2012) both in result also denying
secondary liability on the basis of § 512 (c) (1)(A)(i), (ii), (B) if no additional factors are present, which latter,
however, were at least considered very thoroughly in Viacom International, Inc. v. YouTube, Inc., No. 07 Civ.
2103 (S.D.N.Y. 2010) under the standard of wilful blindness and in the framework of the right and ability to
control the infringing content. In Capital Records v. Vimeo, No. 14-1048 (2d Cir. 2016) the court emphasized the
shifting burden of proof in regard to ‘red flag’ knowledge and held that the burden to establish disqualifying
knowledge is on the claimant (which might make use of discovery proceedings to establish sufficiently specific
facts) (p. 40 et seq.). As for ‘wilful blindness’, the test was construed narrowly, although the court hinted at the
possibility that a generalized policy of urging or encouraging users to infringe might indeed lead to the
establishment of ‘wilful blindness’. However, on the facts of the case, the only sporadic instances of
encouragement were not sufficient to reach this threshold.
29 See comprehensively on the legal situation in hitherto European case law Matthias Leistner, ‘Is the CJEU
Outperforming the Commission?’ (2017), available at: <https://ssrn.com/abstract=3077615>, accessed 12

February 2019, with further references.
30 BGH, Beschl. v. 13.9.2018, GRUR 2018, 1132.
31 BGH, Beschl. v. 20.9.2018, GRUR 2018, 1239.

the Council on copyright in the Digital Single Market (in the following: DSM-Directive) aims
to establish an area-specific solution for such services including certain reasonable ex ante
duties of care.32 Hence, in this particular field the differences between EU and US law are still
substantial.
8.2.4 Consequence for international law
As for attempts to further universalise the concept of primary infringement in international

law, it has to be emphasised that the exclusive use rights were harmonised to a certain
(patchy, but considerable) extent in the Berne Convention and in the TRIPs Agreement
anyway. Moreover, the WCT and the WPPT have further broadened the communication to the
public right, including the new making available right, and thus have adapted this economic
right specifically for the internet, filling the remaining gaps as regards subject matter and
internet specific scope.33 Hence, universal statutory provisions exist on the international level.
At the same time, on the basis of this universalist framework, the search for an appropriate
balance of interests in borderline cases is partly left to the contracting states (limited
pluralism).34 What is more, in the contracting states, the intricate issues of defining direct
infringement in regard to new forms of internet use hitherto typically have often been left to
the courts allowing for certain leeway of manoeuvre and partly differing solutions. By
contrast, attempts to resolve the involved issues legislatively, such as partly in the project for
the proposed EU DSM-Directive, have led to a spectacularly controversial political debate
and campaigns from all sides, leading – at best – to political compromises, which are not
entirely satisfactory from an academic point of view. In fact, any attempt to propose a new
and systematically consistent framework for statutory regulation of direct and indirect
infringement in European law (thus replacing the makeshift expansion of the concept of
communication to the public by the CJEU with a transparent and consistent statutory
framework)35 was bound to fail under these conditions.
32 First Proposal for a Directive on copyright in the Digital Single Market, COM(2016) 593 final; meanwhile, the
trilogue negotations have led to an agreed text, see for the most current and already agreed Four-Column-
Document Council Document 5893/19, 2016/0280(COD), of 7 February 2019. This consolidated version will
now have to be confirmed in the Council and in the European Parliament.
33 See briefly Jane C. Ginsburg and Luke Ali Budiardjo, ‘Liability for Providing Hyperlinks to Copyright-Infringing
Content: International and Comparative Law Perspectives’, 41 Colum. J.L. & Arts 153, 156 (2018); Silke von
Lewinski, International Copyright Law and Policy (2008), para. 17.72 et seq. (also on the relation to the
communication right and the contextual differences in that regard between the WCT and the WPPT).
34 See for a rather detailed (and at the same time comparatively broad) construction of the communication
right under the WCT (with a particularly original approach to the problem of a differentiated treatment of
different kinds of hyperlinks, but also applicable beyond that area) Jane C. Ginsburg and Luke Ali Budiardjo,
‘Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law
Perspectives’, 41 Colum. J.L. & Arts 153, 158 et seq. (2018); Sam Ricketson & Jane Ginsburg, International
Copyright and Neighboring Rights: The Berne Convention and Beyond (2006), para. 12.60-12.61.
35 See Matthias Leistner and Ansgar Ohly, ‘Direct and indirect copyright infringement: proposal for an
amendment of Directive 2001/29/EC (InfoSoc Directive)’, available at: <https://doi.org/10.1093/jiplp/jpy182>,

In fact, this is not necessarily bad news. Given the informational uncertainty in the field,
the courts might under certain institutional conditions 36 be better equipped to strike a fair
balance in iteratively developing case law (bottom-up) than the legislator, which latter seems
to be paralysed by the sheer furore of the global political debate on copyright liability in the
internet.37 Anyway, the considerable gap between Europe and the U.S. and also the
considerable political differences within these jurisdictions in regard to the assessment of the
contentious borderline cases clearly show that further specification of the exclusive use rights
on the international level, and thus a more universalist concept, is not a promising avenue for
the near future.
What could be achieved (in the BC, in TRIPs and in particular in the WIPO internet
treaties) was the establishment of comparatively broad, standard-like provisions, defining the
exclusive rights on the international level in a way, which is on principle apt to deal with the
challenges of the digital networks. From today’s perspective this achievement of the 1990’s is
an impressive success which probably wouldn’t even be possible under today’s political
conditions. This broad universalist basis in the international treaties is highly valuable not
only as a legal source but also as a conceptual framework38, which can help to at least deliver
a conceptual level playing field (a basic, neutral common structure) for the different national
approaches. It thus contributes to an effective ‘exchange’ and ‘distribution’ of certain
particularly helpful approaches in national case law on a global scale.
To be sure, further specification on the international level would of course theoretically be

possible, e.g. by way of combining open-ended exclusive rights’ definitions as standards with
non-conclusive lists of statutory positive and negative case examples.39 However, given the
political controversy surrounding the topic, to attempt such further specification on the
international level seems completely unrealistic at the moment. Instead, further specification
of primary infringement should be left to the courts, which from this author’s viewpoint have
by and large40 shown that they can rise to that challenge on both sides of the Atlantic.
accessed 12 February 2019 (to be published in JIPLP 2019). See also Matthias Leistner, ‘Copyright law on the
internet in need of reform: hyperlinks, online platforms and aggregators’, 12 JIPLP, 136, 138 et seq. (2017).
36 Cf. also infra 8.4.3.5.
37 See further Matthias Leistner, ‘Structural aspects of secondary (provider) liability in Europe‘, 9 JIPLP, 75, 89
(2014).
38 See on the CJEU’s (however partly inconsistent case law), which not only uses international law as a prior
legal source (albeit not always in a correct interpretation), but also as a source for argumentation and further
discourse Matthias Leistner and Verena Roder, ‘Die Rechtsprechung des EuGH zum Unionsurheberrecht aus
methodischer Sicher – zugleich ein Beitrag zur Fortentwicklung des europäischen Privatrechts im
Mehrebenensystem’ ZfPW 129, 141 et seq. (2016).
39 See on a similar proposal for European law Matthias Leistner and Ansgar Ohly, ‘Direct and indirect copyright
infringement: proposal for an amendment of Directive 2001/29/EC (InfoSoc Directive)’, available at:
<https://doi.org/10.1093/jiplp/jpy182>, accessed 12 February 2019 (to be published in JIPLP 2019); further also
Ansgar Ohly, ‘A Fairness-Based Approach to Economic Rights’, in P.B. Hugenholtz (ed), Copyright Reconstructed
(Wolters Kluwer 2018) 83.
40 If one focuses on the results instead of the sometimes doubtable dogmatics behind them (see on the latter
comprehensively Matthias Leistner and Verena Roder, ‘Die Rechtsprechung des EuGH zum Unionsurheberrecht

8.3 Secondary liability in a comparative law perspective
8.3.1 U.S. Law
8.3.1.1 Contributory liability, inducement, vicarious liability

In the U.S., secondary liability for copyright infringement can be established under the
heads of contributory liability (since Grokster 41 also encompassing a developed concept of
inducement) or vicarious liability. While contributory liability in general requires a material
contribution to the infringement and knowledge, the specific category of inducement, apart
from distribution of a device or service and causation of a direct act of infringement, mainly
requires a promotion by the defendant to use the delivered device or service to infringe 42.
Vicarious liability generally requires the right and ability to control the acts of the direct
infringers and a direct financial interest in the infringing activities.
According to more recent case law, contributory liability requires specific knowledge of
the infringements, while mere constructive knowledge – in particular the assumption of
specific knowledge based on the mere general awareness that the service is used for copyright
infringement (general knowledge) – is not sufficient.43 However, in the earlier Napster
judgment a file sharing service with a centralised index on its own servers was regarded as
having actual knowledge; under these circumstances, the failure to remove the material and
thereby to stop infringing activities was regarded as material contribution. 44 Hence, given a
certain degree of specific control and information about the content, and the availability of
easy measures to substantially reduce infringing activity, in effect, the secondary contributory
liability was based on material contribution through non-compliance with such preventive
measures.
Also, the U.S. Supreme Court in its Grokster judgment assumed contributory liability
through inducement when a device or service is expressly or impliedly promoted for copyright
aus methodischer Sicher – zugleich ein Beitrag zur Fortentwicklung des europäischen Privatrechts im
Mehrebenensystem’ ZfPW 129 (2016, in German language), this is generally also true as regards the case-law of
the CJEU. The most notable exception from this author’s viewpoint is the generally too liberal treatment of
frame & inline links, cf. the references in supra footnote 25.
41 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). The question, whether inducement, according to
Grokster, remains a part of contributory liability or does indeed establish a new theory of secondary liability for
copyright infringement, is contentious. See for the latter Evan F. Fitts, Note, Inducement Liability for Copyright
Infringement Is Born: The Supreme Court Attempts to Remedy the Law's Broken Leg with a Cast on the Arm, 71
Mo. L. Rev. 767, 779 (2006). cf. also Jane C. Ginsburg, Separating the Sony Sheep from the Grokster Goats:
Reckoning the Future Business Plans of Copyright-Dependent Technology Entrepreneurs, 50 Ariz. L. Rev. 577,
584 (2008); Jane C. Ginsburg and Luke Ali Budiardjo, ‘Liability for Providing Hyperlinks to Copyright-Infringing
Content: International and Comparative Law Perspectives’, 41 Colum. J.L. & Arts 153, 197 footnote 190 (2018).
42 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) p. 4 as restated in Perfect 10, Inc. v. Giganews, Inc.,
No. 15-55500 (9th Cir. 2017) p. 25 et seq.

43 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) p. 2 et seq.; BMG Rights Mgmt (US) LLC v. Cox
Comm’ns Inc., No. 17-1353, 2018 WL 650316 at *8--*11 (4th Cir. 2018) p. 311.
44 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) para. B.

infringement, e.g. through public advertising or by other affirmative steps, such as respective
assistance and advice.45 If these factors are present, other accessory factors, such as the
complete absence of filter technology and a business model which objectively relies on
copyright infringement to be commercially successful, can come into play and tip the scales
against the alleged secondary infringer. Hence, when a service encourages direct
infringement, the very absence of any filtering technology as well as the objective design of
the business model, as an infringement based or at least inclined business model of an (active)
intermediary, can lead to contributory infringement through inducement on the basis of a
balancing of interests. 46 The Grokster ratio has since then been extended – under certain
conditions – to a BitTorrent index and service provider, which was regarded as inducing
infringement in the Columbia Pictures, Inc. et al. v. Gary Fung et al. case.47 Hence, in
hitherto case law for such more or less active intermediaries, contributory liability through
inducement is effectively based on non-compliance with a duty of care to ‘neutralise’ the
service, in particular through filtering and other preventive measures, if the service, due to
advertising activities or other implied affirmative steps, was promoted as allowing copyright
infringement.
As regards vicarious liability, U.S. courts tend to require not only the right and ability to
control specific infringements, but also a direct financial benefit in the sense that the concrete
infringement in question must act as a specific draw for potential customers 48. Naturally, these
conditions typically exclude access providers 49, hyperlinking cases 50 as well as de-central file
sharing systems51 from the scope of the doctrine. Even for online content sharing service
providers, typically, the elements of a right and ability to control specific acts of infringement
by their users as well as of a direct financial benefit, derived specifically from concrete
individual infringements, will be missing.52 Hence, the relevance of vicarious liability in the
field of intermediary liability today is very limited.
8.3.1.2 Provider safe harbours in the Digital Millennium Copyright Act (DMCA)
45 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) p. 2, 4.

46 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) p. 4.
47 See Columbia Pictures, Inc. et al. v. Gary Fung et al., 710 F.3d 1020 No. 10-55946 (9th Cir. 2013).
48 Perfect 10, Inc. v. Giganews, Inc., No. 15-55500 (9th Cir. 2017) p. 27 et seq.
49 Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004); Luvdarts LLC, et al v. AT&T Mobility, LLC, et al, No. 11-
55497 (9th Cir. 2013); Perfect 10, Inc. v. Giganews, Inc., No. 15-55500 (9th Cir. 2017).
50 See Jane C. Ginsburg and Luke Ali Budiardjo, ‘Liability for Providing Hyperlinks to Copyright-Infringing
Content: International and Comparative Law Perspectives’, 41 Colum. J.L. & Arts 153, 194 (2018).
51 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005); cf. on a centralised file sharing system the older
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), which affirmed both, contributory and
vicarious liability of Napster’s file sharing platform.
52 Cf. UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 No. 09-55902 (9th Cir. 2011),
although in the context of 17 U.S.C. § 512 (c) (1) (B); with a wider interpretation of 17 U.S.C. § 512 (c) (1) (B)
see, however, Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19 (2nd Cir. 2012) para. B. See further on
the safe harbours infra 8.3.1.2.

In 1996, the DMCA introduced provider safe harbours in U.S. copyright law for transitory
network communication services (e.g. access providers), for caching providers (this safe
harbour has remained of absolutely minor independent importance 53), for information location
tools (e.g. search engines) and – most importantly – for information residing on systems or
networks at direction of users (e.g. host providers, online content sharing services etc.). The
respective regulation is copyright specific and comparatively rather detailed. Its general
structure has become a global model for regulation in this sector.54
If secondary liability is construed around the central factors of the role, function and
degree of knowledge and control of the intermediary and the violation of respectively
reasonable and proportionate duties of care, as will be submitted here55, the necessary
conditions of the specific liability limitations 56 can be understood as particular minimum
duties of care, which have to be complied with, in order to profit from the safe harbours.
Naturally, there is no room to go into the details here and to comprehensively compare the
global system of different provider safe harbours. Suffice it to say that in general the
copyright specific U.S. system is characterised by a comparatively detailed, technical
regulation of the notice & takedown procedure for host providers, including a detailed
regulation of the possibility and handling of counter-notices by the affected users as well as a
provision on liability for damages because of knowing material misrepresentation in
infringement notices or counter-notices. Also, the U.S. system comprises a specific provision
for search engines, which is notably lacking in the European E-Commerce-Directive’s
system.57
Nonetheless, certain shortcomings of the regulation of the provider safe harbours have
meanwhile been identified in legal literature. Firstly, faulty (in large part automated)
infringement notices seem to be an issue. At least, empiric work has shown that they represent
a substantial share of infringement notices and that the counter-notice procedure is too rarely
triggered by the alleged infringers in order to effectively solve this problem.58 Two possible
options to remedy this situation come to mind, i.e. (1) to reform the counter-notice system in
53 See Jennifer Urban and Laura Quilter, ‘Efficient Process or “Chilling Effects”? Takedown Notices Under Section
512 of the Digital Millennium Copyright Act’, Santa Clara Computer &High Technology Law Journal, 621, 690
(2005).
54 The success of the safe harbour approach, cannot simply be explained by mere trade policy and the impact of
bilateral free-trade agreements (FTA) as even before the enactment of the DMCA, similar regulation was in
place in influential jurisdictions, see in detail infra 8.4.3.3.
55 See with a similar analysis for European law Christina Angelopoulos, European intermediary liability in
copyright: A tort-based analysis (2017) 389 et seq. & passim; Martin Husovec, Accountable, not liable:
Injunctions against Intermediaries (2015) 215 et seq.; see also infra 8.4.3.4.
56 More precisely, the DMCA only limits the remedies in regard to any monetary relief and partly also in regard
to injunctive relief.
57 See infra 8.3.2.4.
58 Jennifer Urban and Laura Quilter, ‘Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512
of the Digital Millennium Copyright Act’, Santa Clara Computer &High Technology Law Journal, 621, 679 et seq.
(2005); Jennifer Urban, Joe Karaganis and Brianna Schofield, ‘Notice and Takedown in Everyday Practice’ (2017)
3, 44 et seq., available at: <https://ssrn.com/abstract=2755628>, accessed 12 February 2019.

order to make it work in a more functional way59, and (2) to apply a broader liability standard
in regard to wrongful misrepresentation of copyright infringement in respective § 512 notices.
While the U.S. courts generally have applied the “knowing material misrepresentation”-
standard of 17 U.S.C. § 512 (f) in a rather restricted, subjective way, focusing on a mere good
faith requirement60, in a more recent case the 9th Cir. at least required right holders to
consider fair use and thus to form what might be called a procedurally ‘informed’ subjective
good faith belief on fair use before sending a takedown notification.61 Paying mere lip service
to this in essence procedural requirement is not sufficient, i.e. at least certain general measures
to substantively take into account fair use considerations will have to be shown. In that regard,
obiter, the 9th Cir. suggests that the implementation of algorithms might be a valid and good
faith middle ground in order to comply with the procedural requirement to consider fair use in
a large number of initial pre-notification reviews.62 Whether this standard can indeed solve
the problem of flawed notification remains in doubt; however, as the 9th Cir. correctly
emphasises, the implementation of a different, stricter liability standard for misrepresentation
in infringement notifications would be a task for legislative reform, not for the courts.63
Secondly, for certain providers, in particular online content sharing services as well as
certain ‘active’ providers, which effectively draw customers on the grounds of possible
copyright infringement, the rather detailed provider safe harbour system in the U.S. might be
too inflexible to achieve balanced results. As for hosting platforms, in particular online
content sharing services, the cases UMG v. Veoh of the 9th Cir.64 as well as Capitol Records,
LLC v. Vimeo of the 2nd Cir.65 required actual knowledge of or apparent indicators for
specific acts of infringement to apply 17 U.S.C. § 512 (c) (i) or (ii) on knowledge or ‘red
flag’-awareness and trigger the consequent exclusion of the provider privilege. Both courts
also rely on the exclusion of active monitoring duties in 17 U.S.C. § 512 (m) (1) to support
their findings. As a result, even in cases where contributory liability would be triggered
according to the Napster standard, the standard of 17 U.S.C. § 512 (c) (A) (i) or (ii) seems to
be stricter and can still exclude liability. Similarly, the standard of a financial benefit directly
attributable to the infringing activity and the right and ability of the service provider to control
such infringing activity (exclusion of the privilege according to 17 U.S.C. § 512 (c) (B)) is
partly handled in a very restrictive way; this effectively limits the provision to cases, where
the provider has the possibility to control specific, i.e. individually identified acts of
59 See for a respective proposal infra 8.4.3.3.

60 Rossi v. Motion Picture Ass'n of America, 391 F.3d 1000 (9th Cir. 2004).
61 Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015) para. C; even considerably stricter Online Policy
Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004) 1204 et seq: party actually knew, should have
known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting
in good faith that the act in question was fair use.
62 See Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015) with further details.
63 Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015) para. C VI; see also infra 8.4.3.3.
64 UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 No. 09-55902 (9th Cir. 2011).
65 Capital Records v. Vimeo, No. 14-1048 (2d Cir. 2016).

infringement.66 Effectively, in the overall context of 17 U.S.C. § 512 (c), such narrow
construction of 17 U.S.C. § 512 (c) (B) makes the provision entirely superfluous, since in the
remaining cases specific knowledge (or at least ‘red flag’-knowledge) of individual acts of
infringement would clearly have to be given anyway, thus already triggering 17 U.S.C. § 512
(c) (A) (i) or at least (ii). At least, in the Viacom v. YouTube case the 2nd. Cir. held that in
regard to the standard of necessary specific (not only general) knowledge, the doctrine of
wilful blindness can apply.67 In a similar, slightly stricter direction, as regards the standard of
17 U.S.C. § 512 (c) (B), the court acknowledged that a certain degree of exerting substantial
influence on the activities of the users (without acquiring specific knowledge of individual
activity) might bring the activity outside of the safe harbour. However, mere categorisation of
videos, the related video function and similar automatic optimisation activities shall not meet
this threshold yet. By contrast, the selection and individual offering of certain user material in
the context of licences to third parties (syndication of certain content to third parties)
potentially fulfils the condition of exerting substantial influence. 68 Hence, to sum up, the main
focus of US courts in regard to the liability safe harbour’s application to content platforms is
essentially on notice & takedown and emphasising the exclusion of active monitoring duties.
However, for more ‘active’ providers or for providers with a particular high degree of ‘red
flag’-awareness under certain conditions (wilful blindness; active, substantial influence on the
user’s infringing activities) the door remains open for the exclusion of the safe harbours and
hence further reaching duties of care under the untrammelled contributory liability and
inducement doctrines.
Similarly, for access providers, secondary liability is generally handled strictly and the 17
U.S.C. § 512 (a) safe harbour on principle is applied broadly by the courts, effectively
excluding any kind of monetary relief and mostly also injunctions.69 However, in a couple of
cases, where no effective notification infrastructure was in place at the time of the
infringement70 or where specific notifications of repeat infringements were systematically and
repeatedly ignored 71, providers have been held liable under secondary liability doctrine by the
courts.
8.3.1.3 Summary of the legal situation
66 Cf. UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 No. 09-55902, para. 15 et seq. (9th
Cir. 2011).
67 Viacom International Inc et al v. YouTube Inc et al, 676 F.3d 19 No. 13-1720, para. 60 (2nd Cir. 2012).
68 Viacom International Inc et al v. YouTube Inc et al, 676 F.3d 19 No. 13-1720 (2nd Cir. 2012) para. C.
69 Luvdarts LLC, et al v. AT&T Mobility, LLC, et al, No. 11-55497 (9th Cir. 2013): denying both, vicarious as well as
contributory liability; see also Perfect 10, Inc. v. Giganews, Inc., No. 15-55500 (9th Cir. 2017), for a usenet
provider.
70 Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004).
71 BMG Rights Mgmt (US) LLC v. Cox Comm’ns Inc., No. 17-1353, 2018 WL 650316 at *8--*11 (4th Cir. 2018).

All in all, the necessarily sketchy and pointillist overview of U.S. law shows that there is a
comparatively robust focus on the statutorily specified minimum duties of care concerning
notice & takedown for specific infringing content (and the related broader policies, such as
repeat infringer policies etc.) as necessary conditions of the DMCA safe harbour system.
Generally, case law thus rather strictly complies with the exclusion of legal duties to monitor
content.
Nonetheless, for certain more ‘active’ intermediaries as well as at least in cases of wilful
blindness or non-compliance with the minimum DMCA duties regarding repeat infringers,
secondary liability will be triggered under the heads of contributory liability and in particular
inducement liability. However, the attempts of the courts to flexibly regulate a further
reaching set of necessary and proportionate preventive measures, including flexible
injunctions, are comparatively limited by the strict language of the DMCA and have remained
restricted to a very limited number of cases.
8.3.1.4 Private regulation and ‘DMCA plus’ measures
Although the legal situation, thus, at first sight seems to represent a balance of interests,
which robustly safeguards the rights and interests of the providers as well as (seemingly) the
freedom of information of internet users, recent studies have shown that private regulation on
the basis of technological innovations by the large online platforms has led to filtering,
blocking and takedown activities which go substantially further than what would be required
under the statutory framework of the DMCA.72 In part, such further going ‘DMCA plus’-
measures are meanwhile also specified in the framework of individual licensing and other
agreements between large right holders and certain internet platforms. 73
On the one hand, such co-operative filtering, monetising or blocking and takedown
activities seem to provide for efficient solutions to the potential conflict of interest between
right holders and platforms. Moreover, a large advantage of such private ordering is that it
allows to iteratively develop innovative and efficient possibilities to monetise content and to
test such new measures in the markets in a much more flexible way than any kind of
legislative initiative would permit. The main problem with this kind of private ordering is the
undeniable danger that the interests of right holders and large platforms are accommodated at
the expense of the interests of individual users in the protection of their rights and liberties,
72 Stefan Kulk, Internet Intermediaries and Copyright Law (Ridderprint 2018) 279 et seq.; Jennifer Urban, Joe
Karaganis and Brianna Schofield, ‘Notice and Takedown in Everyday Practice’ (2017), available at:
73 Jennifer Urban, Joe Karaganis and Brianna Schofield, ‘Notice and Takedown in Everyday Practice’ (2017) 29,
available at: <https://ssrn.com/abstract=2755628>, accessed 12 February 2019.

such as a robust application of the fair use doctrine in regard to user generated content. 74 Also,
the efficiency of such private regulation obviously requires a procedural and substantive level
playing field for respective agreements; if, because of certain market conditions, effectively,
one of the parties can freely set the technological standards for such private agreements, the
resulting regulation might not represent a fair balance of all involved interests. A main
practical problem in that regard is also the transparency of private regulation. In fact,
complete transparency in regard to self-regulation of filtering, monetising and blocking
activities on large platforms seems a necessary pre-condition of public oversight of the overall
fairness and equitability of such agreements, which also have to take the interests of the
individual consumers into account.75 Further, from the viewpoint of smaller competitors in the
intermediary business, access to developed filtering technologies, in particular if they develop
into a genuine standard in the markets, obviously can be an issue in the future.
8.3.2. European Law

8.3.2.1 Overview
As pointed out above, in Europe only the scope of the exclusive rights (direct liability) is
fully harmonised (in Art. 2 et seq. InfoSoc-Directive, see further supra 8.2.2). By contrast,
secondary liability doctrines are – in theory76 – largely left to the Member States. However, as
regards intermediaries, Art. 8 (3) InfoSoc-Directive provides for a specific obligation of the
Member States to ensure that right holders can at least apply for an injunction against
intermediaries whose services are used by a third party to infringe a copyright or a related
right without fully harmonising the details of such injunctions (see further infra 8.2.3.2).
While secondary liability is, thus, generally left to national law by the EU statutes, at the
same time the E-Commerce-Directive foresees a fully harmonised system of provider safe
harbours similar to the basic structure of the DMCA (see further infra 8.3.2.4).
8.3.2.2 CJEU’s case law on the right of communication to the public (Art. 3 InfoSoc-
Directive)
Against this background, in order to achieve effective harmonisation the CJEU has
recently tended to develop a very broad understanding of the scope of the communication to
74 See Stefan Kulk, Internet Intermediaries and Copyright Law (Ridderprint 2018) 281; Niva Elkin-Koren, ‘Fair use
by design’ 64 UCLA L. Rev. 1083 (2017); Maayan Perel and Niva Elkin-Koren, ‘Accountability in Algorithmic
Copyright Enforcement’, 19 Stan. Tech. L. Rev. 473, 476, 487, 491 (2016).
75 See also Stefan Kulk, Internet Intermediaries and Copyright Law (Ridderprint 2018) 286.
76 In fact, large areas of internet secondary liability today are left to the Member States’ laws only in theory,
because the CJEU’s broad infringement concept effectively pre-empts national doctrines of secondary liability,
see supra 8.2.2.

the public right, which unitarily covers both, direct autonomous acts of infringement as well
as indirect causation of infringement by third parties (see supra 8.2.2).
As regards mere indirect causation, such as with regard to ‘normal’ hyperlinks to illegal
material77 and the provision of devices or services, which are used by third persons for
infringing activities78, the CJEU’s unitary liability concept recently centres around the
elements of knowledge or the violation of reasonable and proportionate duties of care.79 Also,
a set of interdependent typological factors, such as the inclusion of the material in the context
of an own service, targeted to a receptive public as well as the for-profit character of the use
in question, play an accessory role in assessing whether an act amounts to a copyright
relevant, independent act of communication to the public.80
In regard to services or infrastructure, which are promoted81 for infringing activities or

whose operators expressly display their purpose to make protected works available in blogs
and forums82 (active providers), general knowledge of the use of the device or service for
infringing activity is sufficient to trigger liability of such intermediaries, provided the other
conditions of a communication to the public are met (see the CJEU judgments in Filmspeler
and The Pirate Bay). Arguably, even the mere fact that a very large number of files on an
online sharing platform relate to works published without the consent of the right holders can
suffice to establish general knowledge, which triggers liability in such cases.83
However, at present it is not entirely clear whether such mere general knowledge also
suffices for liability when genuinely ‘neutral’, passive providers are concerned. In GS Media
the CJEU required specific knowledge of the infringing character of the material at the source
of the hyperlink. The practical relevance of this condition was significantly weakened in the
judgment however. This is because specific knowledge was presumed for commercial
operators by the CJEU, since it could be expected from such persons that they “carr[y] out the
necessary checks to ensure that the work concerned is not illegally published on the website to
which those hyperlinks lead”. 84 This rebuttable presumption of specific knowledge, which
seemed reasonable enough in the GS Media case (concerning the individual and persistently
77 Case C-160/15 GS Media (2016) ECLI:EU:C:2016:644.

78 Case C-162/10 Phonographic Performance Ltd. v Ireland (2012) ECLI:EU:C:2012:141; Case C-527/15
Filmspeler (2017) ECLI:EU:C:2017:300; Case C-610/15 The Pirate Bay (2017) ECLI:EU:C:2017:456.
79 Matthias Leistner, ‘Is the CJEU Outperforming the Commission?’ (2017) 6 et seq., 10 et seq., available at:
<https://ssrn.com/abstract=3077615>, accessed 12 February 2019; Ansgar Ohly, ‘The broad concept of

or unitary liability?’ GRUR Int. 517, 522 (2018); Matthias Leistner and Ansgar Ohly, ‘Direct and indirect
copyright infringement: proposal for an amendment of Directive 2001/29/EC (InfoSoc Directive)’, available at:
<https://doi.org/10.1093/jiplp/jpy182>, accessed 12 February 2019 (to be published in JIPLP 2019).
80 See further Matthias Leistner, ‘Is the CJEU Outperforming the Commission?’ (2017) 12 et seq., available at:

81 Cf. Case C-527/15 Filmspeler (2017) ECLI:EU:C:2017:300 para. 50.
82 Cf. Case C-610/15 The Pirate Bay (2017) ECLI:EU:C:2017:456 para. 45.
83 Cf. Case C-610/15 The Pirate Bay (2017) ECLI:EU:C:2017:456 paras. 45.
84 Case C-160/15 GS Media (2016) ECLI:EU:C:2016:644 para. 51.

repeated posting of links to the same infringing material on different source websites abroad)
has been criticised by some authors as being unrealistic in cases of automated mass
aggregation of hyperlinks 85. Accordingly, the German Federal Court of Justice has refused to
apply the presumption to frame links containing Google’s image search function, since the
social usefulness of such search services as well as their automated, passive mass character
precluded a presumption of specific knowledge. 86
From this author`s viewpoint, an alternative understanding of the CJEU’s case law as well
as of the additional qualifications which the German Federal Court of Justice has applied to
the presumption of knowledge is preferable anyway: In fact, the CJEU has developed a
general liability concept in GS Media, which triggers liability on the alternative conditions of
specific actual knowledge or the violation of reasonable duties of care (i.e. the non-
compliance with the duty to carry out the ‘necessary checks’, which can be ‘expected’
regarding the legal status of the processed material).87 In this interpretation, the German
Federal Court of Justice’s judgment is straightforwardly consistent with GS Media: Only
reasonable and proportionate preventive measures, defined with a view to all circumstances of
the specific case in hand, can be ‘expected’ of indirect infringers, if they act in a purely
neutral and passive role. When they comply with these duties (such as a search engine which
at least reacts to automated opt-out tags88), the presumption of specific knowledge is rebutted
and liability under the GS Media doctrine will not be triggered. However, the presumption
does apply (consequently triggering liability) when the indirect infringers do not comply with
reasonable and proportionate duties of care (such as in GS Media where the operators did not
react to repeated notification or rather only replaced the respective illegal sources of their
links).89
85 Cf. e.g. Ansgar Ohly, ‘The broad concept of “communication to the public” in recent CJEU judgments and the
liability of intermediaries: primary, secondary or unitary liability?’ GRUR Int. 517, 521 (2018): a host of open
questions; cf. also Opinion of AG Szpunar in Case C-610/15 The Pirate Bay (2017) para. 52: amounts to a
general obligation to monitor for indexing sites of peer-to-peer networks.
86 BGH, Urt. v. 21.9.2017, GRUR 2018, 178 paras 58 et seq.
87 See also Matthias Leistner, ‘Is the CJEU Outperforming the Commission?’ (2017) 6 et seq., 10 et seq., available
at: <https://ssrn.com/abstract=3077615>, accessed 12 February 2019; Ansgar Ohly, ‘The broad concept of
or unitary liability?’ GRUR Int. 517, 522 (2018).
88 Which can be provided by the concerned website operators using the so-called robots.txt files.
89 See comprehensively on this reading of GS Media, which is meanwhile the predominant understanding of the
judgment in German copyright literature, Matthias Leistner, ‘Is the CJEU Outperforming the Commission?’
(2017) 10 et seq., available at: <https://ssrn.com/abstract=3077615>, accessed 12 February 2019; Ansgar Ohly,
‘The broad concept of “communication to the public” in recent CJEU judgments and the liability of
intermediaries: primary, secondary or unitary liability?’ GRUR Int. 517, 522 (2018); see also briefly Matthias
Leistner and Ansgar Ohly, ‘Direct and indirect copyright infringement: proposal for an amendment of Directive
2001/29/EC (InfoSoc Directive)’, available at: <https://doi.org/10.1093/jiplp/jpy182>, accessed 12 February
2019 (to be published in JIPLP 2019). As for German literature on BGH, Urt. v. 21.9.2017, GRUR 2018, 178, see
e.g. Matthias Leistner, ‘»In jedem Ende liegt ein neuer Anfang« – das BGH-Urteil »Vorschaubilder III«, seine
Bedeutung für die Bildersuche und für die weitere Entwicklung des Haftungssystems im Urheberrecht‘ ZUM 286
(2018); Ansgar Ohly, ‘Comment on BGH’, GRUR 187 (2018); Jan Bernd Nordemann, ‘EuGH-Urteile GS Media,

Of course, some of the borderline cases remain a challenge for this liability system. Thus,
it is unclear, whether different types of hosts, such as Youtube or certain sharehosters, have to
be regarded as ‘active providers’, where general knowledge of large-scale infringing activity
might suffice to trigger liability under the Filmspeler and ThePirateBay doctrine, or as
genuinely ‘neutral providers’, where specific knowledge or the violation of reasonable and
proportionate duties of care is required for liability. In fact, two recent preliminary references
of the German Federal Court of Justice, concerning liability of YouTube for copyright
infringement by its users90 and the liability of a sharehoster service91, will allow the CJEU to
further specify the new liability doctrine in regard to these borderline cases.
In sum, the CJEU is in the course of developing an autonomous unitary concept of liability
within a broad understanding of infringement of Art. 3 InfoSoc-Directive. Since Art. 3
InfoSoc-Directive follows a concept of full harmonisation, inevitably, this broad infringement
concept, encompassing indirect causation, largely pre-empts traditional national doctrines of
secondary liability. 92
8.3.2.3 Injunctions against intermediaries, Art. 8 (3) InfoSoc-Directive

As for liability in cases of distant causation, which do not qualify for the new
comprehensive infringement concept of the CJEU, the statutory framework in EU copyright
law is limited to the singular provision of Art. 8 (3) InfoSoc-Directive on remedies against
‘intermediaries’.93 However, this open-ended provision does not further specify liability of
such distant intermediaries beyond the general principle that national law of the Member
States must at least provide for an action for injunctive relief.
As for further specification of such injunctions, the CJEU has very early clarified that
injunctive relief in this sense does not only comprise of takedown, but also encompasses
necessary, targeted and proportionate measures to prevent the future availability of the
infringing material on the network (staydown).94 At the same time, the necessary preventive
measures must not amount to a general obligation to monitor (because of Art. 15 E-
Commerce Directive as well as the general need to fairly balance the involved fundamental
rights taking into account the principle of proportionality). Hence over-broad injunctions,
Filmspeler und ThePirateBay: ein neues europäisches Haftungskonzept im Urheberrecht für die öffentliche
Wiedergabe’ GRUR Int. 526, 531 (2018).
90 BGH, Beschl. v. 13.9.2018, GRUR 2018, 1132.
91 BGH, Beschl. v. 20.9.2018, GRUR 2018, 1239.
92 See similarly Ansgar Ohly, ‘The broad concept of “communication to the public” in recent CJEU judgments and
the liability of intermediaries: primary, secondary or unitary liability?’ GRUR Int. 517, 522 (2018); cf. also Jan
Bernd Nordemann, ‘EuGH-Urteile GS Media, Filmspeler und ThePirateBay: ein neues europäisches
Haftungskonzept im Urheberrecht für die öffentliche Wiedergabe‘, GRUR Int. 526 (2018).
93 For other IP infringement cases (patents, trade marks) this is mirrored in Art. 11 sentence 3 Enforcement
Directive.
94 Case C-324/09 L'Oréal v. eBay et al. (2011) ECLI:EU:C:2011:474 para 141.

covering the complete present and future repertory of a right holder without specifying the
limits of the injunction at all, are not permissible. 95 Generally, the scope of the necessary
preventive measures has to be specified on the basis of a balancing of the involved
fundamental rights of the right holder (Art. 17 (2) EU Charter of Fundamental Rights), the
intermediary (Art. 16 Charter) and the users of the service (Art. 11 Charter) taking into
account the general principles of EU law, in particular the principle of proportionality.96 This
rather general balancing requirement has been further specified in more recent case law,
clarifying that the essence of the involved fundamental rights must always be respected and
protected against serious infringement. Consequently, when considering the possibility and
scope of injunctions against distant intermediaries, the alternative possibilities of the right
holder to enforce its intellectual property rights also have to be considered. If enforcement
against the direct infringers or more proximate intermediaries is impossible or unrealistic,
because they cannot be identified, more intense preventive duties will indispensably apply to
the access provider. 97
Consequently, the CJEU has inter alia accepted the permissibility and necessity of website
blocking orders against access providers98 and the order of certain other preventive measures,
including pro-active measures, such as password protection and user identification, against
WLAN providers.99 The resulting measures must be targeted, effective and proportional and
must not deprive the users of such providers of their individual rights. Also, individual users
must have access to the courts in order to dispute respective measures by the providers if they
impact on their individual rights. 100 Within that rather general EU law framework, further
specification of respective orders is left to Member States’ laws. This results in a presently
rather heterogeneous system of injunctive relief (including blocking orders against internet
access providers) in the different Member States as regards legal basis, scope and degree of
specification (result oriented, open-ended injunctions vs. specific blocking orders). Notably,
also the important question, who has to bear the cost for the necessary preventive measures
(regarding the upfront cost for the initial installation of certain filtering technology or other
infrastructure as well as the cost for the individual implementation of the measures in each
specific case), is answered differently throughout the different Member States.
8.3.2.4 Provider safe harbours (Art. 12-15 E-Commerce Directive)
95 Case C-360/10 SABAM v. Netlog (2012) ECLI:EU:C:2012:85; Case C‑70/10 Scarlet v. SABAM (2011)
ECLI:EU:C:2011:771 .
96 Case C‑314/12 UPC Telekabel Wien v. Constantin Film Verleih (2014) ECLI:EU:C:2014:192 paras. 47 et seq.
97 See Case C‑484/14 Mc Fadden v. Sony Music Entertainment Germany (2016) ECLI:EU:C:2016:689.
98 Case C‑314/12 UPC Telekabel Wien v. Constantin Film Verleih (2014) ECLI:EU:C:2014:192 paras. 47 et seq.
99 Case C‑484/14 Mc Fadden v. Sony Music Entertainment Germany (2016) ECLI:EU:C:2016:689 paras. 90 et
seq., 96.
100 Case C‑314/12 UPC Telekabel Wien v. Constantin Film Verleih (2014) ECLI:EU:C:2014:192 para. 57.

The resulting EU liability system, which mainly consists of
(a) the new, fully harmonised and comprehensive concept of infringement, developed by
the CJEU in the framework of Art. 3 InfoSoc-Directive, and
(b) the singular and only partially harmonising provision of Art. 8 (3) InfoSoc-Directive on
injunctions against intermediaries,
is, thus, characterised by an over-broad and at the same time differentiated infringement
concept, which fills the gaps, left by the almost entire lack of secondary liability
harmonisation on the level of EU law.
However, while secondary liability as such is not harmonised on the EU level (although
now largely covered for the internet cases by the new, broad and differentiated infringement
doctrine of the CJEU), the E-Commerce Directive provides for three specific provider safe
harbours for access and other mere conduit providers, caching providers and host providers.
While the general structure of this regulation reminds of the DMCA system, there are also
considerable differences. Firstly, the E-Commerce Directives’ provider privileges’ scope is of
a general nature, not limited to copyright infringement. Due to this broader field of
application, secondly, the regulation is less detailed and technical; in particular, the details of
notice & takedown are not specified (and consequently differ to a considerable degree
throughout the Member States). Also, no counter-notice procedure is foreseen. Thirdly, there
is no specific damages claim for material misrepresentation in notices, although liability for
damages will typically follow in such cases from general (national, unharmonised) tort law in
most of the Member States’ laws. Further, fourthly, there is no specific provider safe harbour
for search services. Parts of legal literature and also case law in the Member States argue that
search engines should be covered under the hosting safe harbour101; however, in light of the
legislative history of the E-Commerce Directive, this opinion is not undisputed102. Lastly,
since the provisions are much less detailed, there is also no regulation of further general
policies, such as repeat infringer measures etc.
In line with the Recitals and purpose of the E-Commerce Directives’ safe harbours, the
CJEU has limited the scope of the specific safe harbour privileges, namely the host provider
101 Cf. Cases C-236/08 to C-238/08 Google and Google France v. Louis Vuitton Malletier et al. (2011)
ECLI:EU:C:2011:474: Art. 14 E-Commerce Directive at least applicable for AdWord Services of Google as an
‘information society service’ ; BGH, Urt. v. 27.2.2018, ZUM 2018, 433, paras. 32 et seq. in line with BGH, Urt. v.
29.4.2010, GRUR 2010, 628 also argue for the transfer of the host provider liability principles to search services
but establish lower requirements for the respective duties of care; see also OGH (Austrian Supreme Court of
Justice), 19.12.2005, GRUR Int. 2006, 955: characterising search services as ‘information society services’ and
effectively applying a notice & takedown approach in regard to keyword advertising; in German case law by the
lower courts, OLG Köln (Cologne Higher Regional Court), Urt. v. 13.10.2016, BeckRS 2016, 18916, paras. 91 et
seq., favours the application of the hosting safe harbour while LG Frankfurt/M. (Frankfurt Regional Court), Urt.
v. 9.2.2017, GRUR-RR 2017, 458, paras. 51 et seq. leaves the characterisation open; by contrast, LG
Frankfurt/M., Urt. v. 26.10.2017, MMR 2018, 251 denies the applicability of access provider privilege and also
applies the hosting principles.
102 Cf. Gerald Spindler, ‘Verantwortlichkeit von Diensteanbietern nach dem Vorschlag einer E-Commerce-
Richtlinie’ MMR 199, 204 (1999).

privilege according to Art. 14 E-Commerce Directive, to providers which play a neutral role
in the sense that their “conduct is merely technical, automatic and passive, pointing to a lack
of knowledge or control of the data which …[they] store…” 103. The implications of this
qualification for certain hosting services are contentious and subject to a vivid legal debate in
European legal literature. 104 Suffice it to say in the present context, that from this author’s
viewpoint the CJEU’s case law is not strictly focused on a requirement of specific actual
knowledge of or specific affirmative control over individual acts of infringement. Instead, the
CJEU seems to apply a more flexible test, which assumes a certain degree of knowledge and
control, when providers leave their neutral, merely technical automatic and passive role and
instead actively provide assistance, in particular in optimising the presentation of certain
content or promoting such content by whichever means. 105 In such cases, the provider
privileges do not apply.
As for the reach of the liability privileges in the E-Commerce Directive, at present it seems
not entirely clear, whether the exceptions only apply to secondary liability or also to primary
infringement.106 In light of the case law of the CJEU and also of the very extensive concept of
infringement in some of the more recent judgments, it seems consistent and indispensable in
light of the purpose of the liability privileges that the resulting limitations on principle also
apply to infringement liability.107 Naturally, in cases of primary infringement, typically,
providers will not have been limited to a neutral, merely technical automatic and passive role
and therefore the conditions of the specific privileges will not be met anyway. Nonetheless,
the underlying dispute is not of a purely academic nature, because the general principle, that
no general obligation to monitor must be imposed on providers, also applies to active
providers and therefore can limit the scope of reasonable and proportionate duties of care as
regards both: primary and secondary liability.
103 Cases C-236/08 to C-238/08 Google and Google France v. Louis Vuitton Malletier et al. (2011)
ECLI:EU:C:2011:474 para. 114.
104 Cf. Matthias Leistner, ‘Is the CJEU Outperforming the Commission?’ footnote 60 (2017), available at:
<https://ssrn.com/abstract=3077615>, accessed 12 February 2019; Rosati, ‘Why a reform of hosting providers‘

safe harbour is unneccessary under EU copyright law’ 38 E.I.P.R. 668, 672 et seq. (2016), both with further
references.
105 Cf. similarly Case C-324/09 L'Oréal v. eBay et al. (2011) ECLI:EU:C:2011:474 para. 116; however, see also ibid
para. 115 as well as Cases C-236/08 to C-238/08 Google and Google France v. Louis Vuitton Malletier et al.
(2011) ECLI:EU:C:2011:474 para. 116 et seq.: neither the facts, that a service is subject to payment, nor the
mere concordance between content and certain search terms, the mere setting of terms for the service or the
mere provision of general information to the customers in themselves can have the effect of denying the
liability exemptions. See further on the resulting discussion about the scope of the provider privileges in Europe
Matthias Leistner, ‘Is the CJEU Outperforming the Commission?’ (2017) 14 et seq., available at:
106 In particular, the German Federal Court of Justice, in its reference decisions BGH, Beschl. v. 13.9.2018, GRUR
2018, 1132 (on YouTube) and BGH, Beschl. v. 20.9.2018, GRUR 2018, 1239 (on uploaded.net), seems to imply
that the provider privileges are not applicable to acts of infringment under Art. 3 InfoSoc-Directive.
107 Matthias Leistner, ‘Is the CJEU Outperforming the Commission?’ (2017) 16, available at:

With respect to remedies, the E-Commerce Directive provider privileges exclude the
possibility to claim damages or other monetary compensation. At the same time, the CJEU
has clarified that injunctive relief, including preventive duties to guarantee stay down of
certain infringing material, remains unaffected by the specific provider privileges. Hence,
neutral providers can be subject to injunctive relief, encompassing the order of preventive
measures, namely website blocking orders or other precautionary measures, including pro-
active measures, such as password protection or even permissible identification requirements,
to prevent the availability of infringing material. 108 The drafting of such orders by the courts,
however, has to take into account that no general obligation to monitor must be imposed on
the intermediaries. Therefore, blocking orders must relate to specific material or categories of
material and must not result in a general pro-active and entirely non-specified duty to
comprehensively monitor the complete traffic of an intermediary. 109
8.3.2.5 Summary of the existing legal situation

In sum, EU law on intermediary liability in the internet today is mainly characterised by
the new comprehensive concept of infringement, which the CJEU has developed under Art. 3
InfoSoc-Directive. Since this concept is still sketchy, certain questions presently remain
unanswered.
As regards the basic structures, in cases of indirect causation, the CJEU in result seems to
assume an infringement of the communication to the public right (given all other conditions),
if the intermediary has specific actual knowledge of the infringing material or has not
complied with certain reasonable and proportionate duties of care to check the legal status of
the processed material. In the case of active intermediaries, which have promoted their
service for infringement or taken other affirmative steps in regard to infringing activities or
which are characterised by a large number of infringing files available on their service,
general constructive knowledge, that infringing material is available, has been regarded as
sufficient to trigger full-scale infringement liability anyway. By contrast, it seems that in cases
of neutral intermediaries, specific actual knowledge of individual infringement or,
alternatively, non-compliance with reasonable and proportionate duties of care will remain
the central elements of liability.
Such duties of care, according to the emerging CJEU’s case law, can encompass pro-
active, preventive duties, i.e. the necessary checks to clarify the status of the processed
material. However, they must not amount to a general obligation to monitor, and their scope
108 Case C‑314/12 UPC Telekabel Wien v. Constantin Film Verleih (2014) ECLI:EU:C:2014:192; Case C‑484/14
Mc Fadden v. Sony Music Entertainment Germany (2016) ECLI:EU:C:2016:689 paras. 90 et seq., 96. The latter
decision also considers the reimbursement of the costs of giving formal notice and court costs and allows to
put the burden for such necessary costs on the provider, who has to reimburse them to the claimant (see ibid
para. 78).
109 See further already supra 8.3.2.3.

has to be specified by balancing the (fundamental) rights and interests of all involved
stakeholders (right holders, intermediaries, individual users) under the specific circumstances
of the case, taking into account the general principles of EU law, namely the principle of
proportionality. Affected users must have access to the courts.
The system of provider privileges (safe harbours) in Europe resembles the basic structure
of the DMCA system with its central focus on notice & takedown for hosting providers.
However, there are also considerable differences. Most notably for the topic in hand, the law
does not foresee a counter-notice procedure for the affected users or specific liability for
damages because of material misrepresentation in infringement notifications. Also, a specific
privilege for information location tools is not provided for. In general, the regulation of notice
& takedown and the related policies in Europe is less detailed and technical and instead
contains a lot of rather general standards.
The specific provider liability exceptions only apply to neutral providers whose role is of a
merely technical automatic and passive nature. Although the specifics of this test are
disputed, it seems that the test is less strictly focused on actual specific knowledge and control
than the U.S. case law on 17 U.S.C. § 512, but instead rather centres on a functional
evaluation of the question, whether the intermediary has taken an active role in optimizing the
presentation of certain content or promoting such content. In the latter case, the specific
provider privileges do not apply. However, the general principle that no general obligation to
monitor must be imposed on intermediaries remains applicable in any case.
If the conditions of the provider safe harbours are met, liability for damages is excluded.
As regards injunctive relief, the provider privileges do not exclude orders to block infringing
materials, notably including preventive orders (stay down). Such preventive orders can also
include website blocking orders to conduit providers, namely access providers, as well as
orders to implement alternative preventive measures, such as password protection or
identification of users as far as this is permissible and reflects a proportionate balance of
rights and interests in the given case. Apart from the principle that no general obligation to
monitor must be imposed and the requirement to balance all involved rights and interests,
taking into account the principle of proportionality, EU law does not further define the scope
of preventive (blocking) orders nor any other details, such as the crucial question, who has to
bear the cost for such measures. Most notably, on the basis of the very general provision of
Art. 8 (3) InfoSoc-Directive, the specific legal basis for such blocking orders or other
preventive orders against distant neutral intermediaries is entirely left to the Member States’
laws.
8.3.2.6 Further policy regulation for online content sharing services? Art. 13 of the
European project for a Directive on Copyright in the Digital Single Market

Against this general background, the EU legislator presently tries to further define the role
and to gradually intensify the liability of online content sharing services in Art. 13 of the
proposed Directive on Copyright in the Digital Single Market.110 Also, a counter-notice
procedure shall be foreseen for these cases.
Meanwhile, the trilogue negotiations of the European Commission, the European
Parliament and the Council have led to an agreed version which will have to be confirmed by
final votes in the Council and in the European Parliament.111 A full-fledged discussion of the
different political proposals is not possible here. Suffice it to say that the proposed new
regulation has been the object of a global political and public controversy on a hitherto
unknown scale and that some elements of the proposal will be picked up in the following
consideration and discussion of possible future perspectives of intermediary liability in
international law.
8.4 Elements for regulation on the international level
8.4.1 Copyright specific rules or general framework?
As regards the scope ratione materiae of any regulation of intermediary liability, the
notable difference between the copyright specific ‘compromise’-regulation112 in the U.S.
DMCA and the general approach of the European E-Commerce Directive, raises the question
whether a copyright specific or a general approach to intermediary liability is to be preferred.
In the context of international law, this question is comparatively easy to answer. The
advanced status of international copyright law with its basic harmonisation of economic rights
(primary infringement), even updated to be fit for the internet age by the WIPO Internet
Treaties, provides for a good fundament for further-going attempts to tackle the issue of
secondary liability of intermediaries in a copyright specific way on the global level. By
contrast, no comparable international law nucleus does exist in the realm of general tort law.
Even more importantly, normative, functional and institutional arguments speak in favour
of a copyright specific approach. From a normative and functional perspective, the copyright
balance of interest has certain specific characteristics, which are clearly not present in general
tort law, and not even in other IP areas, such as trademark law. Most notably, the emergence
of commercial content intermediaries, whose business model is (at least partly) based on the
attention, generated by protected material, privately uploaded and/or shared by large numbers
110 For the first proposal of that Directive and the current status of legislation see supra footnote 32.
111 See supra footnote 32.
112 See for the legislative development Cassandra Imfeld and Victoria Smith Ekstrand, ‘ The Music Industry and
the Legislative Development of the Digital Millennium Copyright Act’s online service provider provision’ 10 Law
and Policy 291 (2005) passim; see also Stefan Kulk, Internet Intermediaries and Copyright Law (Ridderprint
2018) 260 et seq.

of anonymous, individual users, poses challenges which are specific to copyright law. 113 Also,
the phenomenon of user generated content raises copyright specific issues, which are also
related to questions of intermediary liability. 114 Moreover, from an institutional perspective,
copyright law provides for a variety of instruments to deal with these challenges which do not
exist in general tort law or in other IP areas. Most importantly, fair use in the U.S. clearly is
part of the overall copyright balance of interests.115 By contrast, in Europe the closed-shop
catalogue of exemptions raises problems 116, while the developed system of collective
administration of copyrights via collecting societies and the instrument of collectively
remunerated exceptions offers a chance to develop new and copyright specific compromise
solutions on the basis of liability rules instead of property rules. 117 In copyright law, because
in many cases the main interests are the efficient distribution of the work and fair
remuneration, such liability rules can play an important role. By contrast, in general tort law,
property rules are the norm, while liability rules remain the exception in cases where
transaction costs are prohibitively high for the enforcement of property rules. Also, the issues
of fair use and exceptions to copyright may also require certain specific technological ‘design
features’ of notice & takedown which consequently are specific to copyright law.118
Without going into further detail, this brief overview shows that in regard to internet
intermediary liability the copyright balance of interest, in itself, as well as the instruments,
copyright law is equipped with to strike that balance, are indeed copyright specific and have
an impact on the related area of intermediary liability to such an extent that an area specific,
copyright targeted approach seems warranted.
113 Cf. Matthias Leistner, ‘Copyright law on the internet in need of reform: hyperlinks, online platforms and
aggregators’, 12 JIPLP, 136, 139 et seq., 141 et seq. (2017).
114 See Matthias Leistner and Verena Roder, ‘Transformative use and user-generated content – Integrating new
paradigms of creativity in copyright law’, in: Drexl (ed.), The Innovation Society and Intellectual Property
(forthcoming).
115 See most clearly Perfect 10, Inc. v. Amazon, No. 06-55405 (9th Cir. 2007): use of the thumbnail images as
fair use, hyperlinks to full-scale images subject to indirect liability, qualified by the so-called ‘server-rule’; cf.
also Stefan Kulk, Internet Intermediaries and Copyright Law (Ridderprint 2018) 245 et seq. Comprehensively on
fair use Pamela Samuelson, ‘Unbundling Fair Uses’ 77 Fordham L. R. 2537 (2009); Pamela Samuelson, ‘Possible
Futures of Fair Use’ 90 Washington L.R. 815 (2015).
116 See e.g. Bernt Hugenholtz and Martin Senftleben, ‘Fair use in Europe, in search of flexibilitites’ (2011) 10 et
seq., available at: <https://www.ie-forum.nl/backoffice/uploads/file/IE-

Forum%20P_B_%20Hugenholtz%20en%20M_R_F_%20Senftleben,%20Fair%20use%20in%20Europe_%20In%20
search%20of%20flexibilities,%20IEF%2010485,%20IViR%2014%20november%202011_.pdf>, accessed 12
February 2019.
117 See e.g. in relation to the discussions on the proposed Directive of the European Parliament and of the
Council on copyright in the Digital Single Market Matthias Leistner and Axel Metzger, ‘The EU Copyright
Package: A Way Out of the Dilemma in Two Stages’, 48 IIC 381 (2017); Matthias Leistner and Ansgar Ohly,
‘Direct and indirect copyright infringement: proposal for an amendment of Directive 2001/29/EC (InfoSoc
Directive)’, available at: <https://doi.org/10.1093/jiplp/jpy182>, accessed 14 February 2019 (to be published in
JIPLP 2019); see comprehensively João Pedro Quintais, ‘Copyright in the Age of Online Access: Alternative
Compensation Systems in EU Law’ (Wolters Kluwer 2017).
118 Cf. Niva Elkin-Koren, ‘Fair use by design’ 64 UCLA L. Rev. 1083 (2017).

8.4.2 Direct infringement v. secondary liability – a distinction to be made?
Concerning the scope of the exclusive economic rights in international law, it has been
argued in this paper that further harmonisation would be politically unrealistic and is not
urgent, since a basic adaptation of the international law framework has been achieved through
the WIPO Internet Treaties of 1996. 119 However, the comparison of the present legal situation
in regard to the distinction between primary liability (infringement) and secondary or indirect
liability in the U.S. (with its strict distinction), on the one hand, and in the EU (with its trend
towards a unitary infringement concept), on the other, raises the question whether the
distinction, as such, should be upheld as a basic element of a global intermediary liability
framework or whether the present European development towards a unitary primary liability
based approach deserves merit.
It has been pointed out that the broad European concept of primary infringement of the
communication to the public right also follows the aim to achieve effective harmonisation
throughout the unitary European market, and hence is guided at least partly by considerations
which are alien to copyright or tort law as such.120 Moreover, a recent comparative law study
of the copyright and general tort law principles underpinning intermediary liability in Europe,
argues in favour of a clear and ‘crisp’ definition of primary (direct) infringement and a clear
distinction between primary (direct) infringement and secondary (indirect) liability. 121 To be
sure, such a clear definition will not always be possible in regard to the activities of different
intermediaries, since the requirements of volitional conduct (in the sense of a proximate,
‘direct’ causation [in U.S. law]) or ‘deliberate intervention’ and ‘central’, ‘indispensable’ role
of the user (in EU law) are necessarily normative (typological) concepts, which leads to
certain impreciseness of their boundaries.
Nonetheless, not only from a comparative law perspective, but also from a normative,
functional and institutional perspective, the distinction between direct and indirect liability
seems to be useful. From a normative perspective, direct infringement mainly corresponds to
a duty to take a licence, where licences are available in the markets; absent such licence, the
act of use is unjustified and fault will typically be indicated by this if there is no specific
justification. Effectively, this comes close to a standard of strict liability. By contrast, in
regard to indirect causation, liability in many jurisdictions hinges on the concept of a violation
of a duty of care, which can be a pro-active or a reactive duty to decrease the risk for directly
infringing acts of third parties to the extent which is possible and proportionate for the
intermediary. Also, duties to co-operate in enforcing copyright against directly infringing acts
of third parties might arise even beyond any prior liability.122 However, the concept of a duty
119 See supra 8.2.4.

120 See supra 8.2.2.
121 Christina Angelopoulos, European intermediary liability in copyright: A tort-based analysis (2017), 64 et seq.
and (in summary) 500.

122 See infra 8.4.4.

of care or a co-operative duty to help to enforce copyright in regard to the actions of third
parties, which infringe copyright, is systematically different from the straightforward duty not
to directly infringe copyright without getting a licence. In fact, from a functional perspective,
strict primary liability might even dis-incentivise efficient co-operation in copyright
enforcement.123 Hence it seems, both concepts should not be mixed up, but rather be
distinguished from each other, even though it might not always be easy to draw the thin red
line between direct and indirect liability. 124
Also, from an institutional perspective, it has to be emphasised that even the CJEU within
its broad concept of infringement meanwhile seems to distinguish between direct causation,
which as a general rule leads to liability as a copyright infringer (under Art. 3 InfoSoc-
Directive), and indirect causation, where specific knowledge or the violation of a duty of care
as well as a number of interdependent typological factors are considered to construe
infringement of the communication to the public right.125 While this development is not yet
stable, it seems that the CJEU might indeed (re-)establish the distinction between direct and
indirect causation within its broad unitary infringement concept in the future.
Hence, from a normative, functional as well as from an institutional perspective a

distinction between primary (direct) infringement and secondary (indirect) liability should be
a universal element of a global system of intermediary liability in copyright law. Also, from a
comparative law perspective, it seems realistic that such a distinction would be accepted on a
global scale. From the perspective of national laws, the distinction is widely established
anyway; and even in EU regional law, where it came under pressure of late, the most recent
judgment suggests that the CJEU is willing to (re-)develop the necessary differentiations in its
future case law on Art. 3 InfoSoc-Directive.
In sum, the distinction between direct and indirect liability should be a universal building
block of a global system of intermediary liability. From a functionalist comparative law
perspective, it would then not even decisively matter, whether the necessary additional
conditions for direct liability are implemented in national or regional law within a broad
unitary concept of infringement or by precisely distinguishing between direct infringement
and indirect liability. This is because the remedies, i.e. injunctive relief, damages, certain
information rights etc., will be similar anyway. But since from a normative perspective the
very fundament of liability is different in both case groups, institutional efficiency requires
123 Cf. Martin Husovec, ‘TILEC Discussion Paper: Accountable, Not Liable: Injunctions Against Intermediaries’
(2016) 43, available at: <https://ssrn.com/abstract=2773768>, accessed 14 February 2019.
124 See Matthias Leistner and Ansgar Ohly, ‘Direct and indirect copyright infringement: proposal for an
amendment of Directive 2001/29/EC (InfoSoc Directive)’, available at: <https://doi.org/10.1093/jiplp/jpy182>,

accessed 14 February 2019 (to be published in JIPLP 2019).
125 Matthias Leistner and Ansgar Ohly, ‘Direct and indirect copyright infringement: proposal for an amendment
of Directive 2001/29/EC (InfoSoc Directive)’, available at: <https://doi.org/10.1093/jiplp/jpy182>, accessed 14

February 2019 (to be published in JIPLP 2019).

that a prior distinction of the categories is made, before further specifying the elements of the
(more intricate) assessment of indirect (secondary) liability.
8.4.3 Indirect liability

The scope of the internet relevant exclusive rights and hence the realm of direct
infringement is on principle defined in international law. By contrast, indirect liability hitherto
is not explicitly regulated on the international level. The considerable differences, which have
been identified in this paper as regards the comparison of EU and U.S. law, as well as the
remarkably energetic political controversy accompanying the attempt to modernise certain
areas of internet liability in the context of the proposed DSM-Directive in Europe, clearly
show that any detailed universalist approach to secondary (indirect) liability today is utterly
unrealistic on a global scale. Hence, any attempt to further regulate the field on the
international level will have to rely on broad standards, leaving considerable leeway for
further specification in national law. Consequently, any attempt to further regulate the field or
at least to establish certain principles and standards on the international level necessarily has
to follow a sufficiently pluralist ‘broad brush’ approach.
Against this background, the most intriguing question seems to be whether at least certain
general principles, building blocks and standards can be identified as a lowest common
denominator for indirect liability on a global scale. From this author’s viewpoint,
notwithstanding the remarkable differences in the structure and legal consequences of
contributory liability in the sense of legal rules, certain common elements of assessing
secondary liability in the sense of more general principles and standards can indeed be
identified.
8.4.3.1 ‘Active’ and ‘neutral’ intermediaries
At the outset, as an objective factor, the degree of the (objective) risk, caused by the
intermediary, as well as the degree of control, the intermediary has in relation to the acts of
direct infringement, play a significant role in assessing liability. 126 In particular, advertising,
assistance and advice and other affirmative steps in regard to acts of copyright infringement,
using the intermediary’s service, characterise the intermediary as an active intermediary, for
which liability should generally be easier established. Similarly, the (objective) design of a
business model of an intermediary might be an accessory factor in establishing liability, where
the business model is specifically designed to profit from direct acts of infringement and
therefore is characterised by an inbuilt bias towards infringing uses. Also, where internet
intermediaries otherwise leave their neutral, merely technical and passive role and exert
126Cf. generally Matthias Leistner, ‘Structural aspects of secondary (provider) liability in Europe‘, 9 JIPLP, 75
(2014).

substantial influence on the activities of their users, such intermediaries should be regarded as
active intermediaries.127
For such active intermediaries, typically, a material contribution to, plus at least
constructive (general) knowledge of a substantial amount of direct copyright infringement by
users of their services should suffice to trigger indirect liability. Of course, the details of
drawing the thin red line between active intermediaries and neutral intermediaries
considerably differ on a global scale. 128 However, as a general principle, a distinction between
active intermediaries, which are subject to stricter rules in regard to their liability, and neutral
intermediaries, where additional elements must be present to trigger indirect liability, seems
meanwhile to be a common basic element of the regulation of intermediary liability on a
global scale.
8.4.3.2 Elements of indirect liability for ‘neutral’ intermediaries

As for neutral intermediaries, apart from causation, subjectively, actual and specific
knowledge of particular infringements is an important element to delineate the area of
secondary liability in many jurisdictions.
Alternatively, the violation of a reasonable and proportionate duty of care to decrease the
risk of direct copyright infringement, using the intermediaries’ service, should be considered
as an alternative element to trigger indirect liability. In the EU, this form of indirect liability,
based on the violation of reasonable and proportionate duties of care, is meanwhile
established by case law. Also, under a comparative law perspective, a duty of care based
concept is fundamentally in line with the basic principles of tort law in the most influential
EU Member states.129 In fact, given the necessary specification of such a flexible negligence
standard in case law through fair and proportionate balancing of rights and interests, it seems
that such a flexible concept can indeed – at least theoretically – accommodate the different
interests involved in intermediary indirect liability cases.130
127 Cf. Jan Bernd Nordemann, ‘EuGH-Urteile GS Media, Filmspeler und ThePirateBay: ein neues europäisches
Haftungskonzept im Urheberrecht für die öffentliche Wiedergabe‘, GRUR Int. 526, 529 (2018); Matthias
Leistner, ‘Is the CJEU Outperforming the Commission?’ (2017) 16 et seq., available at:
<https://ssrn.com/abstract=3077615>, accessed 14 February 2019, on EU law and also supra 8.3.2.5.
128 See for the stricter concept in EU law Matthias Leistner, ‘Is the CJEU Outperforming the Commission?’ (2017)
16 et seq., available at: <https://ssrn.com/abstract=3077615>, accessed 14 February 2019; for the rather
singular cases in U.S. law, which are comparatively limited to situations of inducement, see supra 8.3.1.1.
129 In particular France and Germany, see further Matthias Leistner, ‘Structural aspects of secondary (provider)
liability in Europe‘, 9 JIPLP, 75, 87 et seq. (2014); Christina Angelopoulos, European intermediary liability in
copyright: A tort-based analysis (2017) 274 et seq., 431 et seq.
130 See further Christina Angelopoulos, European intermediary liability in copyright: A tort-based analysis (2017)
438 et seq., 464 et seq.

In the U.S., a general duty of care based approach has not been established in case law.
Developments in that direction can only be observed for active intermediaries. 131 In regard to
neutral intermediaries, typically, specific and actual knowledge will be required. However,
more recent case law has cautiously extended this to cases of wilful blindness132, which in
result is not different from establishing an, albeit extremely limited, duty of care not to turn a
blind eye, when there are obvious indicators for a very high probability of certain specific acts
of copyright infringement using the intermediaries service. While the doctrine is thus limited
to extreme cases, on principle however, it amounts to the establishment of a – very limited –
duty of care even for ‘neutral’ intermediaries. Once contributory liability is established on that
basis, even the provider safe harbour rules can be construed as effectively providing for
certain minimum duties of care as will be shown presently.
All in all, from this author’s viewpoint, apart from causation, either specific actual
knowledge, or the violation of a reasonable and proportionate duty of care to decrease the
risk of direct copyright infringement, using the intermediaries’ service, should be considered
as central elements of principles or standards of indirect liability for copyright infringement
on the international level. To be sure, the alternative element of a reasonable and
proportionate duty of care to decrease the risk of direct copyright infringement, as a general
trigger for indirect liability, is undoubtedly controversial. However, if the universalist
approach on the international level was limited to the mere general standard of a reasonable
and proportionate duty of care, specification of that standard would be entirely left to the
different regional and national jurisdictions. Hence, even an extremely limited national duty
of care based concept – such as wilful blindness – could fulfil this general standard on the
international level. Therefore, understood as a mere general standard, the element of a
reasonable and proportionate duty of care should remain flexible enough to accommodate
very different liability concepts across the globe.
If this was accepted, the crucial challenge would obviously be to provide for certain
guideposts to allow for a pluralist, but structured further specification of this universal duty
of care on the regional or national level, taking all the involved interests (right holders,
intermediaries, users) into account.
8.4.3.3 Safe harbours as minimum duties of care
In that regard, as a starting point, under a duty of care based perspective, the different
national safe harbour provisions could also be construed as basic duties of care, a specific
intermediary has to comply with, in order not to be liable for damages or pecuniary relief. In
fact, the concept of intermediary safe harbours – roughly along the lines of the U.S. DMCA –
131 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005); Columbia Pictures, Inc. et al. v. Gary Fung et al.,
710 F.3d 1020 No. 10-55946 (9th Cir. 2013).
132 See supra 8.3.1.2.

has become a global regulatory success. While the basic concept (albeit with a lot of
differences in structure and detail) is established throughout Europe, Asia and substantial
parts of South America, even today African countries are in the process of enacting Bills on
intermediary liability safe harbours.133 The success of this regulatory approach cannot simply
be explained by mere trade policy and the impact of U.S. Bilateral Trade Agreements. Even
before the enactment of the DMCA, similar regulation was in place in influential jurisdictions,
such as Germany134, which namely became the model for the internet safe harbours of the EU
E-Commerce Directive. Hence, it seems that at the end of the 20th century, it was universally
felt that internet safe harbours and in particular the fundamental element of a notice &
takedown regime for hosts, represented a fair and future proof balance of interests in regard to
the co-operative enforcement of copyright by right holders and internet intermediaries. 135
Consequently, a system of future-proof liability safe harbours should also be an element of

intermediary liability regulation on a global scale, if such more specified regulation would be
politically achievable in the future. As a basic structural model, the liability safe harbours can
meanwhile be regarded as accepted on a global scale under a comparative law perspective and
therefore in a long-term perspective it does not seem entirely unrealistic to establish a similar
system on a global scale (if this is necessary at all, given the degree of international
convergence in this field as a result of at least vaguely similar regulatory approaches as well
as of a number of Bilateral Trade Agreements comprising this regulatory element). At the
same time, the duties on the intermediaries, which are laid down in the conditions of the safe
harbours, obviously could also be reasonable building blocks for a future specification of
minimum duties of care, upstream, in the realm of establishing copyright and tort law
intermediary liability as such.
While the details of such a system of internet safe harbours cannot be outlined
comprehensively here, at least certain identifiable shortcomings of the present system should
be briefly addressed. Firstly, information location tools should be specifically covered by an
international system of internet safe harbours as a specific category, since the lack of
regulation in this area has led to considerable problems and inconsistencies in EU law and the
laws of the EU Member States. 136 Secondly, it seems that the present system of notice &
takedown is characterised by a substantial number of flawed notices, which are not effectively
corrected in the process of counter-notices.137 Generally, while the system is centred on a
133 See for an overview e.g. The Free Internet Project, available at: <http://thefreeinternetproject.org>,
accessed 14 February 2019.
134 See the original Teledienstegesetz (TDG) of 22 July 1997, BGBl. I 1870 (1997), §§ 8-11 (repealed in 2007),
available at: <https://dejure.org/gesetze/TDG>, accessed 14 February 2019.

135 Cf. further on the political compromise behind the DMCA Jessica Litman, Digital Copyright (2nd edn,
Prometheus Books2006) 134 et seq.

136 See supra 8.3.2.5.
137 Jennifer Urban and Laura Quilter, ‘Efficient Process or “Chilling Effects”? Takedown Notices Under Section
(2005); Jennifer Urban, Joe Karaganis and Brianna Schofield, ‘Notice and Takedown in Everyday Practice’ (2017)

workable balance of interests of right holders and intermediaries, it does not sufficiently take
into account the interests of the targeted individual users.138 In that regard, two specific
measures to improve the situation come to mind: (A) liability for damages, based on
misrepresentation in copyright infringement notices or counter-notices, should be stricter than
under the present U.S. ‘knowing material misrepresentation’-standard; in fact, a stricter
‘should have known if it acted with reasonable care or diligence’139 standard should be
considered. (B) a system of counter-notice, alternative dispute resolution (and, ultimately,
access to the courts for the individually targeted users140) should be established 141, which
ideally should be based on delayed takedown, i.e. takedown only if no counter-notice was
received within a short reply window or if the counter-notice proved to be too
unsubstantiated.142 Also, thirdly and more generally, it should be considered to what extent
copyright infringement notices – based on the respective use of algorithms143 – should already
have to procedurally involve considerations of fair use or other exceptions to copyright in
order to be valid in the first place.144
8.4.3.4 Further specification of the duty of care

Apart from such conceivable basic regulation of duties of care in the context of
intermediary safe harbour regulation, no further specification of the necessary and
proportionate duties of care seems necessary or politically possible on the international level.
Negatively, of course in line with most national laws, in the field, it would be possible to
clarify that no general obligation to monitor should be imposed on intermediaries, although
the consequences of this general principle are contentious, in particular in European law.145
Namely, specific preventive duties to pro-actively filter in regard to specific content, notified
by the right holders, along the lines of the European stay down concept, should certainly
44, 96 et seq., available at: https://ssrn.com/abstract=2755628; Daniel Kiat Boon Seng, ‘'Who Watches the
Watchmen?' An Empirical Analysis of Errors in DMCA Takedown Notices’ (2015) 32 et seq., available at:
>https://ssrn.com/abstract=2563202>, accessed 14 February 2019.
138 Stefan Kulk, Internet Intermediaries and Copyright Law (Ridderprint 2018) 285.
139 See already Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004) 1204 et seq.
140 See expressly on that requirement in the EU: Case C‑314/12 UPC Telekabel Wien v. Constantin Film Verleih
(2014) ECLI:EU:C:2014:192 para. 57.

141 For further details see Martin Husovec, ‘TILEC Discussion Paper: Accountable, Not Liable: Injunctions Against
Intermediaries’ (2016) 66 et seq., 73, available at: https://ssrn.com/abstract=2773768 with further references.
142 Jennifer Urban and Laura Quilter, ‘Efficient Process or “Chilling Effects”? Takedown Notices Under Section
(2005); Martin Husovec, ‘TILEC Discussion Paper: Accountable, Not Liable: Injunctions Against Intermediaries’
(2016) 66 et seq., available at: <https://ssrn.com/abstract=2773768>, accessed 14 February 2019.
143 See comprehensively and with a positive view of the future possibilities in this area Martin Husovec, ‘TILEC
Discussion Paper: Accountable, Not Liable: Injunctions Against Intermediaries’ (2016), available at:
144 See further Niva Elkin-Koren, ‘Fair use by design’ 64 UCLA L. Rev. 1083 (2017).
145 Matthias Leistner, ‘Is the CJEU Outperforming the Commission?’ (2017) 21, available at:

remain possible.146 In the context of other legal provisions (e.g. violation of personality rights,
certain criminal law offences etc.), such filtering is not only obviously technologically
possible, but already established by the platforms anyway.147 Hence, regulation of
intermediary liability should embrace this concept, in particular as it allows for algorithm
based, efficient co-operation between right holders and intermediaries,148 and future
technology should allow to better distinguish between cases of copyright infringement and
certain justified uses. 149
Beyond these very general guideposts, further ‘positive’ specification of reasonable and
proportionate duties of care seems hardly possible. Instead, a non-conclusive set of flexible
interdependent typological factors for further specifying duties of care by balancing all
involved rights and interests, including the interests of the individual targeted users, should be
provided. Also, establishing a procedural framework for the necessary balancing of rights and
interests 150 in order to further specify necessary and proportionate duties of care could be
considered.
The typological factors to further specify proportional duties of care should inter alia
include (1) the assessment of the particular role and function of the involved intermediary,
including the evaluation of the particular proximity of causation as well as the question
whether the intermediary has established an effective rights protection system on its own
initiative; (2) the degree of control as to the specific infringing content; (3) the availability
and effectiveness of preventive measures; (4) the situation of the right holders, i.e. the right
146 Matthias Leistner and Ansgar Ohly, ‘Direct and indirect copyright infringement: proposal for an amendment
of Directive 2001/29/EC (InfoSoc Directive)’, available at: <https://doi.org/10.1093/jiplp/jpy182>, accessed 14
February 2019 (to be published in JIPLP 2019).
147 E.g. Facebook employs a combination of new technologies and human monitoring to prevent sexual
harassment, cf. Joseph Mann, ‘Social networks scan for sexual predators, with uneven results’ (Reuters),
available at: https://www.reuters.com/article/us-usa-internet-predators/social-networks-scan-for-sexual-
predators-with-uneven-results-idUSBRE86B05G20120712, accessed 27 February 2019. YouTube contends that
their AI technology is often more accurate than humans at flagging extremist videos, cf. Samuel Gibbs, ‘Google
says AI better than humans at scrubbing extremist YouTube content’ (The Guardian), available at:
https://www.theguardian.com/technology/2017/aug/01/google-says-ai-better-than-humans-at-scrubbing-
extremist-youtube-content, accessed 27 February 2019; see also Jennifer Urban, Joe Karaganis and Brianna
Schofield, ‘Notice and Takedown in Everyday Practice’ (2017) esp. 55 et seq., available at:
<https://ssrn.com/abstract=2755628>, accessed 15 February 2019, on certain ‘DMCA plus’ online service
providers.
148 Martin Husovec, ‘TILEC Discussion Paper: Accountable, Not Liable: Injunctions Against Intermediaries’ (2016)
40 et seq., esp. 46 et seq., available at: <https://ssrn.com/abstract=2773768>, accessed 14 February 2019. See
further on the interests of the individually, targeted users, which might be slightly underscored in that concept,
infra in the text and 8.4.3.5.
149 Niva Elkin-Koren, ‘Fair use by design’ 64 UCLA L. Rev. 1083, 1096 et seq. (2017).
150 See further on a procedural framework for ‚tort law-specific‘ balancing of rights and interests Christina
Angelopoulos, European intermediary liability in copyright: A tort-based analysis (2017) 438 et seq.; however,
notwithstanding some minor slips in case law, the CJEU’s balancing of the involved fundamental rights also
seems to provide for a viable normative (albeit very limited) minimum framework of legally possible duties of
care, see generally on the CJEU’s balancing of fundamental rights Matthias Leistner and Verena Roder, ‘Die
Rechtsprechung des EuGH zum Unionsurheberrecht aus methodischer Sicher – zugleich ein Beitrag zur
Fortentwicklung des europäischen Privatrechts im Mehrebenensystem’ ZfPW 129 (2016, in German language).

holders’ specific need for an action against the secondary infringer in certain categories of
cases, where no effective alternative exists for copyright enforcement; (5) the role and
situation of the targeted users, in particular concerning legitimate expectations, when they
acted in good faith151, as well as their possibilities to assert their rights before a court.152
More generally, it should be clarified that fundamental rights of the right holders,
intermediaries and individual users have to be taken into account when specifying reasonable
and proportionate duties of care. This approach has mainly been followed by the CJEU, which
has not always applied this fundamental rights’ analysis in a consistent way. In particular, at
times the Court has failed to sufficiently take into account that the effects of fundamental
rights are different in relationships between private parties (indirect effect), compared to their
function as defences against acts of the state (direct effect).153 Hence, in conflicts between
private parties, generally, there is considerable leeway for the necessary balance of the
involved fundamental rights. However, if this merely indirect effect of fundamental rights in
conflicts between private parties is properly taken into account (as in the majority of CJEU
cases154), a balancing of the involved fundamental rights, might, at least on a high level, be
helpful to exclude certain untenable outcomes in regard to necessary and proportionate duties
of care. To this end, the balancing process has to be structured under the guiding principle of
proportionality as well as the principle, that none of the involved rights must be deprived of
its very essence as a result of the balancing process.
8.4.3.5 Regulated self-regulation
In another paper, this author has argued that effective specification of the standard of
reasonable and proportionate duties of care in national case law on the basis of such mere
general principles and flexible assessment factors presupposes the presence of certain
institutional factors, such as namely an easily accessible and cost-efficient court system,
151 Here, certain differentiations have to be made, since the elements of ‘good faith’ and ‘legitimate
expectations’ will typically depend on all the circumstances of the case, including factors, such as the particular
platform, chosen by the users. A user, who has chosen a platform, which obviously only contains de minimis
legal content, seems less protection-worthy than a user, who has chosen a ‘neutral’ platform and thus might
have acted bona fide. Cf. also Twentieth Century Fox v British Telecommunications Plc [2011] EWHC 1981 (Ch)
as per Justice Arnold (28 July 2011) para 48 et seq., 186: roundabout <6% legal content on a platform is de
minimis.
152 See further Matthias Leistner, ‘Structural aspects of secondary (provider) liability
in Europe‘, 9 JIPLP, 75, 88 et seq. (2014).

153 See fundamentally Matthias Leistner and Verena Roder, ‘Die Rechtsprechung des EuGH zum
Unionsurheberrecht aus methodischer Sicher – zugleich ein Beitrag zur Fortentwicklung des europäischen
Privatrechts im Mehrebenensystem’ ZfPW 129 (2016, in German language); therefore critical in regard to
fundamental rights‘ balancing as a basis for specifying duties of care and instead in favour of a tort law specific
balancing of rights and interests Christina Angelopoulos, European intermediary liability in copyright: A tort-
based analysis (2017) 436 et seq.
154 See for a consistent interpretation of the CJEU’s case law Matthias Leistner and Verena Roder, ‘Die
Rechtsprechung des EuGH zum Unionsurheberrecht aus methodischer Sicher – zugleich ein Beitrag zur
Fortentwicklung des europäischen Privatrechts im Mehrebenensystem’ ZfPW 129 (2016).

which handles a considerable number of cases. To be sure, while in certain large jurisdictions,
such as England, France, Germany or the U.S., this can be taken for granted to a certain
extent155, in many national jurisdictions these essential institutional conditions will hardly be
fulfilled.
At first sight, this could argue for an attempt to further statutorily define the scope of
proportionate duties of care for the different categories of providers (or to further specify and
differentiate the system of safe harbours), i.e. to increase the universalist element. However,
given the degree of informational uncertainty and political controversy in this very
dynamically developing field of technology, such attempts to further specify duties of care in
any national jurisdiction, let alone in an international instrument, seem futile.156 Instead,
incentives and certain framework regulation for private initiatives to agree on a self-
regulatory framework for the definition of certain duties of care should be considered. 157
However, in that regard the partly unsatisfactory experience with ‘DMCA plus’-practices
in the U.S. has to be considered too.158 According to that experience, agreements or other
initiatives to privately regulate certain further-going duties of internet intermediaries are
characterised by a lack of transparency, insufficient accountability and, as a result, a certain
bias towards solutions, which accommodate the interests of large right holders and
intermediaries at the expense of the interests of individual users. 159 In particular, a self-
regulatory system based on infringement notices, which are to a large extent automatically
generated and consequently include a substantive number of flawed notices, seems inefficient
and tends to undermine the users’ individual rights and interests, if there are no additional
safeguards to protect them.160
Therefore, as regards preventive reasonable and proportionate duties of care, a system of

regulated self-regulation should be incentivised, which should comprise certain transparency
and accountability duties on the side of the right holders and intermediaries as well as a duty
to provide for participation of representative user organisations in any attempt to agree on
155 Although there are also considerable differences, notably in regard to the costs of proceedings.
156 Matthias Leistner, ‘Structural aspects of secondary (provider) liability in Europe‘, 9 JIPLP, 75, 88 et seq.
(2014); cf. also supra 8.2.4 (on possible further clarification in regard to primary liability), 8.4.3.2 & 8.4.3.4.
157 Stefan Kulk, Internet Intermediaries and Copyright Law (Ridderprint 2018) 302 et seq.; Matthias Leistner and
Ansgar Ohly, ‘Direct and indirect copyright infringement: proposal for an amendment of Directive 2001/29/EC
(InfoSoc Directive)’, available at: <https://doi.org/10.1093/jiplp/jpy182>, accessed 15 February 2019 (to be
published in JIPLP 2019).
158 See for criticism in regard to different DMCA plus agreements and technologies Jennifer Urban, Joe
Karaganis and Brianna Schofield, ‘Notice and Takedown in Everyday Practice’ (2017) 116 et seq., available at:
<https://ssrn.com/abstract=2755628>, accessed 15 February 2019; for further references see Stefan Kulk,
Internet Intermediaries and Copyright Law (Ridderprint 2018) 281.
159 Jennifer Urban, Joe Karaganis and Brianna Schofield, ‘Notice and Takedown in Everyday Practice’ (2017) 119
et seq., available at: <https://ssrn.com/abstract=2755628>, accessed 15 February 2019; Stefan Kulk, Internet
Intermediaries and Copyright Law (Ridderprint 2018) 302.
160 Cf. also Martin Husovec, ‘TILEC Discussion Paper: Accountable, Not Liable: Injunctions Against
Intermediaries’ (2016) 46 et seq., available at: <https://ssrn.com/abstract=2773768>, accessed 15 February

2019, proposing a concept of technology-based cooperation (bilateral filtering).

proportionate duties of care in self-regulation.161 Actually, in regard to preventive reasonable
and proportionate filtering measures, further specified in a process of regulated self-
regulation, guaranteeing access to the process for all the involved stakeholders, in particular
participation of individual users’ organizations, and transparency, this idea is rather close to
certain parts of Art. 13 of the proposed DSM-Directive on platform liability. While we
acknowledge, that this proposal has been very controversially discussed, from our viewpoint
it still seems that with certain qualifications to protect small and medium-sized enterprises162
such a regulated and transparent self-regulation process could better guarantee the
development of an effective and proportionate system of preventive duties of care than the
current non-transparent ‘DMCA plus’-practices in the U.S.163 In particular, compared to the
current ‘DMCA plus’ and even mere ‘DMCA Auto’-settings 164, where the issue of flawed
notifications is under-regulated, the rights and interests of individual users could arguably be
better protected, upstream, in a comprehensive system of regulated self-regulation, since the
result of such self-regulation would presumably also encompass certain standards as well as
information duties and accountability in regard to wrongful infringement notifications.
8.4.4 Accountable but not liable? Injunctions against distant neutral intermediaries and
a framework for co-operative enforcement
The resulting nucleus of a universalist system of indirect liability in international law

would be mainly based on causation, plus actual and specific knowledge or violation of a
reasonable, proportionate duty of care. However, given that currently in particular in the
U.S., but also e.g. in UK law, a general duty of care based concept does not exist, any
conceivable duty of care in the realm of contributory liability would be extremely limited in
these and many other jurisdictions. In particular, in cases of neutral access providers and
other situations of more distant neutral causation, typically, no indirect liability would arise.
The resulting very limited concept of indirect liability might undoubtedly lead to
inefficiencies in situations, where a neutral intermediary, which is not liable under a limited
duty of care based concept, is still best situated to co-operate in enforcement against acts of
161 Stefan Kulk, Internet Intermediaries and Copyright Law (Ridderprint 2018) 302 et seq.; Matthias Leistner and
Ansgar Ohly, ‘Direct and indirect copyright infringement: proposal for an amendment of Directive 2001/29/EC
(InfoSoc Directive)’, available at: <https://doi.org/10.1093/jiplp/jpy182>, accessed 15 February 2019 (to be
published in JIPLP 2019).
162 This should comprise exceptions for certain small and medium sized competitors as well as a possible claim
of smaller competitors against the incumbents to compulsory license certain filtering technologies, at least if
they have developed into an industry standard.
163 Similarly Stefan Kulk, Internet Intermediaries and Copyright Law (Ridderprint 2018) 302 et seq.
164 See for these categories, which have been inferred from empirical research, Jennifer Urban, Joe Karaganis
and Brianna Schofield, ‘Notice and Takedown in Everyday Practice’ (2017) 2 et seq., available at:

copyright infringement, because the intermediary – in co-operation with the right holders – is
effectively the cheapest cost avoider.165
In jurisdictions with a further developed duty of care based concept, in such cases a duty of
care to prevent further infringements might arise from the general principles of indirect
liability.166 However, where this is not the case, because a developed duty of care based
system is missing, the question arises, whether a duty to co-operate in the enforcement of
copyrights should also be imposed on neutral intermediaries, which are not indirectly liable
under a strict duty of care based concept. Indeed, this is the concept of the European IP
enforcement system, where a general possibility for the right holders to apply for an
injunction against intermediaries is expressly foreseen (in Art. 8 (3) InfoSoc-Directive for
copyright infringement and Art. 11 sentence 3 Enforcement Directive for industrial property
rights) without harmonising the legal basis, let alone the details of such injunctive relief.
Effectively, the issue, whether the resulting duty to provide for a possibility to claim
injunctive relief even against more distant intermediaries should be based on national tort law,
equity or specific targeted statutory provisions, is entirely left to the Member States. Hence,
given direct infringement, the possibility to claim injunctive relief against intermediaries to
block existent or prevent future comparable infringements 167 in EU law is independent of tort
law liability of these intermediaries. 168
In recent literature, this concept to impose a broad, standard-like duty on the intermediaries
to co-operate with right holders in blocking existent infringements, identifying infringers or
preventing future infringements (in the framework of injunctive relief against intermediaries,
independent of their tortious liability) has been called accountable but not liable.169 The
concept cannot be comprehensively discussed here. Suffice it to say, that a concept of
accountable but not liable intermediaries allows for very flexible remedies (specifically
prescribed in the statute or in the context of orders granted by the courts), which might
namely encompass orders to prevent certain acts of infringement, identified by the right
holders, through filtering measures (including pro-active filtering measures) as well as
blocking measures, paid for by the right holders. This paid for injunctive relief as well as
further specification of other duties of merely accountable neutral and distant intermediaries,
to co-operate in the enforcement of copyright against direct acts of infringement in an
165 Cf. Martin Husovec, ‘TILEC Discussion Paper: Accountable, Not Liable: Injunctions Against Intermediaries’
(2016) 25, 35 et seq.
166 See further Matthias Leistner, ‘Structural aspects of secondary (provider) liability in Europe‘, 9 JIPLP, 75, 78
et seq. (2014) zu Störerhaftung.

167 See on the imposition of preventive duties under Art. 8 sentence 3 Enforcement Directive and Art. 8 (3)
InfoSoc-Directive already supra 8.3.2.3.

168 Christina Angelopoulos, European intermediary liability in copyright: A tort-based analysis (2017) 20, 75, 96;
Martin Husovec, Accountable, not liable: Injunctions against Intermediaries (2015) 237 et seq; Martin Husovec,
‘TILEC Discussion Paper: Accountable, Not Liable: Injunctions Against Intermediaries’ (2016) 5.
169 Martin Husovec, Accountable, not liable: Injunctions against Intermediaries (2015); Martin Husovec, ‘TILEC
Discussion Paper: Accountable, Not Liable: Injunctions Against Intermediaries’ (2016).

efficient way, is indeed possible under the open-ended provision of Art. 8 (3) InfoSoc-
Directive. In addition, certain information duties (subpoenas) should be established for such
accountable but not liable intermediaries.
Apart from providing for the possibility to efficiently enforce copyright in a co-operative
way170, the advantage of such specific and flexible orders is obvious: Since the remedies can
be defined in a cost-neutral, co-operation oriented, very flexible way, the circle of potential
addressees of such orders could indeed be drawn very broadly, effectively encompassing any
relevant intermediary, in comparison to duty of care based indirect liability, where the further-
reaching remedies will always necessarily lead to a correspondingly limiting tendency as
regards possible addressees of such actions.
Without going into further detail here, it therefore seems that a third level of intermediary
accountability, i.e. the possibility of providing for statutorily defined specific duties and/or
flexibly and efficiently specified court orders in the framework of injunctive relief against
accountable but not liable intermediaries is indeed a very helpful instrument in any system of
intermediary liability. To be sure, realistically, no specification of such duties would be
possible on the international level at the moment. However, it seems at least conceivable, that
a respective general standard could be drafted along the lines of the very high level Art. 8 (3)
InfoSoc-Directive. Hence, such a general provision should oblige contracting states to ‘ensure
that right holders are in a position to apply for an injunction against intermediaries whose
services are used by a third party to infringe a copyright or related right’. In addition, certain
information duties should be established to help identify the individual infringers where this is
factually and legally possible under the circumstances of the case.
8.5 Summary: Some tentative principles for intermediary liability on a global scale
1. The distinction between primary (direct) infringement and secondary (indirect)
liability should be a principle of intermediary liability on a global scale.
2. While the scope of the exclusive rights, i.e. the realm of direct infringement, is
reasonably defined in the existing international law instruments, further principles or
standards for indirect liability are lacking.
3. A universalist standard of indirect intermediary liability for copyright infringement
should at the outset make a principled distinction between active intermediaries and
neutral intermediaries. Active intermediaries should be defined as intermediaries,
which through advertising, actions of assistance, advice or other affirmative or
appropriating steps (including the infringement-oriented design of their business
model) have left their neutral, merely technical and passive role and induced acts of
170See comprehensively and very detailed Martin Husovec, Accountable, not liable: Injunctions against
Intermediaries (2015); Martin Husovec, ‘TILEC Discussion Paper: Accountable, Not Liable: Injunctions Against
Intermediaries’ (2016) 40 et seq.

direct infringement or otherwise exerted substantial influence on the infringing
activities of their users.
4. Apart from causation, only general constructive knowledge of direct acts of
infringement on a substantial scale, using the service of the intermediary, should be
required to trigger indirect liability of such active intermediaries.
5. As for neutral intermediaries, apart from causation, the central elements of indirect
liability should be actual specific knowledge of individual acts of infringement or
violation of a reasonable proportionate duty of care to prevent or decrease the risk of
direct acts of infringement.
6. Such reasonable and proportionate duties of care should not only amount to notice &
takedown duties but should also encompass certain pro-active duties (e.g. in the
context of stay down) on the basis of information delivered by the right holders. A
general obligation to monitor should not be imposed on the intermediaries.
7. Generally, individual users should have access to the courts in order to dispute
preventive, take down or stay down measures by the providers, if these measures
impact on their individual rights.
8. Apart from these general guideposts, no further universalist definition of reasonable
and proportionate duties of care seems possible in an international instrument.
9. Instead, the concept should remain a broad standard. Only a set of non-conclusive,
flexible and interdependent typological factors should be provided for in order to help
to further specify the duties of care on a case by case basis.
10. This set of factors as well as the subsequent specification of the duties of care in
individual cases should be based on a proper balancing of all involved fundamental
rights and interests of the right holders, intermediaries and individual users.
11. A system of intermediary liability safe harbours, roughly along the lines of the
DMCA, seems a conceivable perspective for international law, given that the basic
DMCA structure has developed into a regulatory model on a global scale.
12. An international instrument on liability safe harbours would have to improve the
DMCA (or the E-Commerce Directive’s) system. Liability for damages should apply
in cases of material misrepresentation in copyright infringement notices on the basis
of a general negligence standard. Also, the counter-notice system should be reformed
and further developed in the general direction of a notice and delayed takedown
system.
13. Self-regulation to further specify the duties of care should be incentivised. However,
such private ordering needs regulation. Hence, there should be a duty to transparency
on the right holders and intermediaries in regard to the substance and application of
any further going duties of care in the context of private agreements. In addition,
participation of users’ organisations should be guaranteed in any collective initiative
to further specify reasonable and proportionate duties of care.

14. In addition to the outlined system of intermediary liability, a general open-ended
provision should prescribe the principled existence of a possibility in national law to
claim injunctive relief against any intermediary, whose services are used by a third
party to infringe a copyright or related right. This would allow for court orders in the
context of injunctive relief against accountable but not liable intermediaries, to co-
operate in the enforcement of copyrights or related rights against direct infringers.
This duty to co-operate for example might lead to paid-for measures, such as filtering
or blocking measures initiated by and paid for by the right holders. Also, certain
statutory information duties (subpoenas) should be available in national law against
accountable but not liable intermediaries, where this is legally possible.

Intermediary Liability in A Global World: Prof. Dr. Matthias Leistner, LL.M. (Cambridge)

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Intermediary liability in a global world

Prof. Dr. Matthias Leistner, LL.M. (Cambridge)

Electronic copy available at: https://ssrn.com/abstract=3345570

8.2 Direct infringement in a comparative law perspective

time shifted streaming of TV programmes on the internet.

(9th Cir. 2017).

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11 Case C‑161/17 Land Nordrhein-Westfalen v. Renckhoff (2018) ECLI:EU:C:2018:634.

proposal for an amendment of Directive 2001/29/EC (InfoSoc Directive)’, available at:

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proposal for an amendment of Directive 2001/29/EC (InfoSoc Directive)’, available at:

Outperforming the Commission?’ (2017), available at: <https://ssrn.com/abstract=3077615>, accessed 12

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8.2.4 Consequence for international law

As for attempts to further universalise the concept of primary infringement in international

amendment of Directive 2001/29/EC (InfoSoc Directive)’, available at: <https://doi.org/10.1093/jiplp/jpy182>,

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To be sure, further specification on the international level would of course theoretically be

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8.3.1 U.S. Law

8.3.1.1 Contributory liability, inducement, vicarious liability

No. 15-55500 (9th Cir. 2017) p. 25 et seq.

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45 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) p. 2, 4.

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59 See for a respective proposal infra 8.4.3.3.

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8.3.1.3 Summary of the legal situation

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8.3.1.4 Private regulation and ‘DMCA plus’ measures

available at: <https://ssrn.com/abstract=2755628>, accessed 12 February 2019.

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8.3.2. European Law

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In regard to services or infrastructure, which are promoted81 for infringing activities or

77 Case C-160/15 GS Media (2016) ECLI:EU:C:2016:644.

<https://ssrn.com/abstract=3077615>, accessed 12 February 2019; Ansgar Ohly, ‘The broad concept of

<https://ssrn.com/abstract=3077615>, accessed 12 February 2019.

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8.3.2.3 Injunctions against intermediaries, Art. 8 (3) InfoSoc-Directive

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8.3.2.4 Provider safe harbours (Art. 12-15 E-Commerce Directive)

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Richtlinie’ MMR 199, 204 (1999).

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<https://ssrn.com/abstract=3077615>, accessed 12 February 2019; Rosati, ‘Why a reform of hosting providers‘

<https://ssrn.com/abstract=3077615>, accessed 12 February 2019.

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8.3.2.5 Summary of the existing legal situation

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8.4 Elements for regulation on the international level

8.4.1 Copyright specific rules or general framework?

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seq., available at: <https://www.ie-forum.nl/backoffice/uploads/file/IE-