Tuesday, July 18, 2017

[ECtHR] Kharitonov v Russia: When Website Blocking Goes Awry

The European Court of Human Rights will soon hear a key case on website blocking and freedom of expression online - Kharitonov v Russia (app no. 10795/14). The case raises tons of important questions. It should be therefore closely watched by scholars, advocates and policy makers.

As a part of Internet Policy Clinic at TILT, I have been working last couple of weeks with my wonderful Tilburg students and colleagues from Russia on an intervention in this case. The intervention is available in full here. So why is this case so important?

Let's start with some context. According to the communicated file

The applicant is the executive director of the Association of Electronic Publishers and a co-founder of the Association of Internet Users. He is the owner and administrator of the www.digital-books.ru website which features a compilation of news, articles and reviews about electronic publishing. The website had existed since 19 May 2008 and was hosted by Dreamhost, a US-based provider of shared web hosting service. The service provides hosting to multiple websites which reside on a single machine with a single IP address but have different domain names. When the user’s browser requests a website from the server, it includes the requested domain name as part of the request. The server uses this information to determine which website to show the user.
In late December 2012 users from various Russian regions reported to the applicant that access to his website was blocked by their internet providers by reference to “a decision by the competent Russian authority”. He checked the register of websites blacklisted by the Federal Telecom Supervision Service (Roskomnadzor) and found out that the IP address of his website had been entered into the blacklist by the decision of the Federal Drug Control Service dated 19 December 2012. The decision was intended to block access to another website, The Rastafari Tales (www.rastaman.tales.ru), featuring a collection of fictional stories about the use of cannabis, which was also hosted by Dreamhost with the same IP address as the applicant’s website.
The applicant complained to a court that the decision to block the entire IP address had the effect of blocking access to his website which did not contain any illegal information.
On 19 July 2013 the Taganskiy District Court in Moscow rejected the applicant’s complaint, holding that Roskomnadzor had acted within its competence, in accordance with the law and for the purpose of protecting children from harmful information relating to the use of drugs. It did not assess the impact of the contested measure on the applicant’s website. The applicant filed an appeal, relying in particular on the Court’s findings in the case of Ahmet Yıldırım v. Turkey (no.3111/10, ECHR 2012) which concerned indiscriminate blocking of a hosting service. On 12 September 2013 the Moscow City Court dismissed the appeal, finding that the principle of proportionality had not been disrespected because Roskomnazdor had lawfully blocked access to unlawful information. It did not address the effect of the blocking decision on the applicant’s website.

The case thus concerns collateral blocking of the applicant’s website that took place when the government wanted to restrict access to illegal information online. Make no mistake, this is no isolated issue in Russia. According to the data provided by Roskomsvoboda, a Russian community project supporting freedom of information online, as of 28 June 2017, staggering 6,522,629 Internet resources have been blocked in Russia. Of this number, 6,335,850 Internet resources were blocked collaterally, meaning that 97% of all blocked Internet content in Russia is blocked without an adequate legal justification. Wow! - is what I thought when my Russian colleagues informed me about this.

How could this happen? The answer is in simple economics. We explain this in the brief as follows:
(..) profit-maximizing Internet access providers use technological implementation of the blocking that magnifies collateral blocking. The IP address blocking technique is one of the least expensive ways of restricting access to information. Internet access providers frequently choose it over other possible ways. In fact, Internet access providers may not even have the necessary equipment to employ a more granular method of website blocking. For example, Roskomnadzor, the authority, has recently reported that 50-55% of all Russian Internet access providers do not have equipment that allows to analyse Internet traffic and have to rely on IP address blocking. Providers that have no choice, but to engage in over-blocking since a failure to comply with the website blocking regulations will lead to fines and also possible suspension of the license required to provide their services. Moreover, in Russia, the courts do not consider unavailability of equipment that allows granular website blocking as a valid excuse for failure to block access only to targeted websites. To illustrate the real conditions consider that even Rostelecom, the largest Russian Internet access provider (38% market share of broadband market), in which the state is a majority shareholder, acknowledges that it is unable to use more granular website blocking techniques.
(..) At different times due to collateral blocking Russian users were not able to access widely-used Internet services such as: Google, Vkontakte, Wikipedia, Wayback Machine (http://web.archive.org/), GitHub, Reddit, Disney, Discovery and Nickelodeon blogs , VPN services,  websites hosted on Amazon Web Services,  and websites that use CDN services provided by CloudFlare. In addition to the lack of safeguards, the website blocking system in Russia has vulnerabilities that facilitates over-blocking. Any owner of a blocked website can unilaterally change the IP address of the website to any other IP address (for example, the IP address associated with youtube.com). In such case Internet access providers that use IP blocking will be required, under the threat of a penalty, to block the IP address associated with youtube.com making it immediately unavailable for Russian users. This vulnerability in the Russian website blocking system has been known since 2012, including by Roskomandzor, the authority. The magnitude of its wide exploitation for abuse is only rising. Since its start, internet access was blocked to a number of popular websites, including Wikipedia and news websites. It cannot be ruled out that this vulnerability is also responsible for a recent disruption in the banking system. 

In order words, the Russian state created a blocking scheme leads to excessive over-blocking because market players predictably implement mostly cheap technology. And when over-blocked websites try to get back online, they are denied any recourse in law. Wonderful, isn't it? Even better, the local courts tells such operators that there is nothing they can do about it and that the law per se is just fine, despite lack of any safe-guards against over-blocking, and ex-ante or ex-post remedies for unwittingly targeted. The state knows about these effects and does [wait for it] nothing! We can surely do better than that.

In our submission, we address: 
  • (i) the importance of the decision and task of the Court, 
  • (ii) the reasons why the states should be held accountable for collateral over-blocking of the websites by private parties, 
  • (iii) importance of specific legal basis as to the target and means of blocking, 
  • (iv) the need to observe the principle of proportionality in grant and implementation of website blocking and 
  • (v) available remedies against the abuse of website blocking.

We suggests that the Court should recognize that the state can be held accountable for collateral over-blocking in circumstances where it is a foreseeable consequence of its actions. The intervention also suggests that the Court can strengthen online freedom of expression by requiring the state which mandates and delegates website blocking to private actors to mitigate the risks of collateral censorship by taking proactive steps, such as case-by-case assessment of proportionality, guiding the choice of technological implementation and employing effective ex-ante and ex-post remedies.

If you want to learn more about the case, just read our third party intervention - its here (.pdf). I highly encourage you to do so!

I am very thankful to the team who prepared this intervention within TILT's Internet Policy Clinic. The brief was put together by three students of Tilburg Law School (Dane Carlson, Giannis Ntokos and Katerina Psychogyiou) under supervision of Martin Husovec (Assistant Professor at Tilburg Law School, TILT&TILEC) and Russian scholars: Elena Buiantueva, Natalia Chuyko and Ruslan Nurullaev. The Clinic also benefited from the assistance of Tommaso Crepax (lecturer at TILT).

Monday, May 22, 2017

[New Paper] Website Blocking, Injunctions and Beyond: View on the Harmonization from the Netherlands

I have recently uploaded on SSRN a new draft of a paper about harmonization and blocking (forthcoming in GRUR Int) that I co-authored with my student, Lisa van Dongen. It is an extension of the talk that I gave in Berlin last year during the JIPLP/GRUR event. I hope you will find it useful. As always, any comments are welcome!

Very few provisions of the European Union intellectual property enforcement framework are subject to so many preliminary references as orders against intermediaries. The website blocking case law is also an interesting case study from the perspective of the European harmonization. It shows how harmonisation by a halo effect can work. The widely-publicized use of a particular enforcement measure is replicated country-by-country, by a homogeneous group of stakeholders, thereby testing the local implementations and bringing its elements to the public scrutiny. The resulting picture painted by the domestic website blocking cases then reflects the state of Union harmonization.

This piece contributes to the growing scholarship mapping the national post-implementation phase. It proceeds as follows. Part 1 gives a primer on Union law regarding injunctions against intermediaries. Part 2 explores the situation under the Dutch ‘localization’ of Union law, focusing particularly on injunctions, including against intermediaries, right to information and reimbursement of the costs. Part 3 explains the recent Dutch litigation chain concerning the website blocking and puts it in the broader context of discussions. Part 4 contrasts these findings with the situation under European Union law and practice in the other Member States. Part 5 concludes by evaluating the existing state of the harmonization in the area.

You can access it here.


Monday, October 3, 2016

Intermediary Liability as a Human Rights Issue [Call for Papers]

Call for Papers (abstracts due November 30, 2016) 

Intermediary Liability as a Human Rights Issue 

An issue of Journal of Intellectual Property, Information Technology and Electronic Commerce Law (JIPITEC) (link) 

Edited by: Martin Husovec (Tilburg University)

Overview
Intermediaries are backbones of Internet economy. Increasingly, they are also becoming unavoidable gatekeepers to our fundamental rights as citizens. They shape our opinions, but also amplify power of our words; they provide platforms for our creativity, but also limit its forms. Given their crucial position of control, they are increasingly called upon to assist the government in implementing various policies. These range from fighting hate-speech and terrorism to providing effective remedies against defamation and intellectual property violations. In addition to imposing liability, the governments, recognizing power of intermediaries, are turning to them into co-regulators of Internet environment asking them to surveil, control and enforce. 

Intermediary liability is generally understood as a set of rules that place responsibility on Internet companies with respect to third-party content that is deemed unlawful. These rules act as carrots and sticks. They incentivize intermediaries to handle complaints of individuals and governments. The design of the rules influences how and when the content is take-down, blocked, or filtered away. It influences what automated solutions intermediaries pick from the market and with what consequences.  

It is therefore no surprise that the governmental policies regarding intermediary liability are increasingly scrutinized from the perspective of human rights. The Council of Europe recently conducted a large scale study regarding such policies in its member states and is working on a set of recommendations.  The civil society globally launched a discussion about the principles regarding the best governmental practices.  The European Court of Human Rights is receiving a wave of new cases objecting to national schemes of intermediary liability.  In general, the intermediary liability policies are re-entering the spotlight globally and increasingly becoming to be evaluated for their human rights compliance. 

This paper symposium will provide an opportunity to highlight new academic work and serve as a venue to build theory about a rapidly changing subject. Owing to JIPITEC’s open access policy of the journal, it is our goal to facilitate and promote the relevant research to a variety of stakeholders working daily in the area—including lawyers, judges, law enforcement, legislators and policymakers, activists and civil and human rights organizations, technologists, and academics in a variety of fields.

We welcome contributions that present original research, offer conceptual, critical, or theoretical analyses of these issues.

We particularly encourage submissions addressing (not limited to) such subjects as:

Content take-down and reinstatement in light of human rights
Human rights aspects of filtering and website-blocking
Human rights aspects of voluntary enforcement agreements among individuals 
Government-pressured ‘codes of conduct’ and human rights
Relationship between EU law and ECHR law on intermediary liability
Digital jurisdiction and its role for due process
Positive obligations of the state and their impact on intermediary liability
Right to be delisted and its implications for global free speech
Transparency of intermediaries about content-removals
Algorithmic enforcement and fundamental rights

Deadlines and anticipated timeline:
Initial abstract submission deadline (~ 500 words): November 30, 2016 
Authors notified of (tentative) acceptance: December 31, 2016
Full papers due (based on accepted abstracts): May 31, 2017
Peer-review (after submission of full papers)
Publication in 2017

Specifics about submissions:
Initial abstracts should contain approximately 500 words. Subsequent full paper submissions should contain fewer than 10,000 words (including footnotes and citations), and should contain a 200-word abstract and biographical information about the authors on a cover page. Invited full paper submissions will undergo formal double-blind peer review, which is expected to take between 1 and 2 months (submissions that are not selected for peer-review will be released back to the authors quickly). All submissions should be submitted in editable Word (*.doc/x) or *.rtf formats, and should adhere to the formatting and citation requirements of JIPITEC (available at https://www.jipitec.eu/for-authors).

All submissions of abstracts and/or questions should be sent to the editor via email to: m.husovec (at) uvt (dot) nl

Wednesday, September 28, 2016

[New Paper] Holey Cap! CJEU Drills (Yet) Another Hole in the E-Commerce Directive’s Safe Harbors

Yesterday, I put on SSRN a draft of my upcoming piece for JIPLP, in which I reflect on Mc Fadden and its broader consequences. Its called: Holey Cap! CJEU Drills (Yet) Another Hole in the E-Commerce Directive’s Safe Harbors.

Here is the abstract:
The E-Commerce Directive is going through a hard time. Numerous policy initiatives and judgements of the Court are exposing its provisions to a real stress test. The goal of this paper is not summarize or evaluate in general this trend, but to show how a single decision of the CJEU with few open issues can lead to destabilization of the system. The center-stage of this brief article is the Court’s recent decision in Mc Fadden v Sony Germany and its short-term and long-term consequences for the future of safe harbours, their scope and IP enforcement. The paper argues that by allowing the exclusion of pre-trial costs and litigation costs from the liability exemptions, the Court has drilled yet another hole in the system of safe harbours. It also highlights that the decision to permit password-locking as an enforcement practice is a short-sighted policy choice that will require number of clarifications. Last but not least, it is argued that a root-cause of the rejection of Advocate General’s proposition to outlaw password-locking is the Court’s treatment of the fundamental rights as the only framework of reference for IP enforcement. This causes also constructive and well-explained arguments of good innovation policy to fall often on deaf ears.
You can download it here

I would love to hear your feedback! So if you have some, please get in touch.

Thursday, September 1, 2016

EC Proposes Stay-down & Expanded Obligation to License UGC Services

European Commission does not care about the future of the digital single market. This is basically what it just communicated to citizens of Europe in its recently leaked proposal on Directive on copyright in the Digital Single Market. Its content is nothing but a shameful statement of where a lobbying muscle of the music industry can drag our policy makers. Evidence does not matter; the public consultations are not worth the paper they are written on. This brief piece will try to make sense of the newly proposed rules on intermediary liability.

The proposal tries to address address the so called 'value gap' problem. Value gap is a rhetorical device borrowed from the music industry that mostly likely coined the term for the first time in its global music reports (before IFPI 2016 report, you see it really only in music industry documents). Its argument is that because the hosts such as YouTube are covered by a safe harbour and have to act only upon notice to remove content of its users, they get content via various voluntary revenue-monetizing agreements/systems like ContentID for less money than streaming services like Spotify. This then represents a gap between the added value to the service and income that it produces money to the right holders. To be sure, music industry complains about revenue-share that it gets based on agreements they agreed to in voluntary negotiations. They say that the hosting safe harbour causes imbalance in these negotiations because they cannot charge YouTube as Spotify because hosts can simply fall back on notice and take-down and not agree to anything. Yes, that is what happens if you provide a different type of service [selling music streaming with high quality content vs selling advertising on top of user-generated-content]. What music industry is really complaining about is that since they cannot perfectly enforce their rights against infringing users (or perhaps because it costs money), intermediaries should pay them for users, and the fee should be equal to what the highest paying sort of clients pay - those selling the music itself. This is not a place to expand on this debate too much, but let me just say one thing. If hosts see notice-and-takedown as a real alternative to negotiations with right holders, perhaps it indicates that the music is not so indispensable for the online service. Right holders can expose services without such agreements to more enforcement, and so if the music would be so crucial, notorious take-downs would destroy its business.

But let's get back to the proposal. After the public consultation on intermediary liability, the European Commissioned committed to following:
The Commission will maintain the existing intermediary liability regime while implementing a sectorial, problem-driven approach to regulation: (..) - in the next copyright package, to be adopted in the autumn of 2016, the Commission will aim to achieve a fairer allocation of value generated by the online distribution of copyright protected content by online platforms providing access to such content.
Remember these words because the proposal change all existing intermediary liability principles in the field of copyright. In the draft of the proposal that was leaked yesterday on fantastic IPKat, the relevant provisions are recitals 38 to 40 and art. 13 (click for bigger picture).


The proposal attacks the existing law already in Recital 39. Pretending that it summarizes some established principles, it says that hosts and other service providers who are not passive [don't provide technical infrastructure], are automatically ('thereby') communicating work to the public and thus have to license the content. If this was true than none of the courts in Member States would have to struggle with its own domestic secondary liability laws. Yes, because unlike the European Commission, most of the scholars, case-law and policy people think that if you assist in disseminating content, you might have that dissemination attributed to you under some circumstances (secondary liability), but don't pretend that dissemination is your own (direct liability). EC's attempt is what we have seen in 90's during the Bill Clinton administration and is exactly the reason why E-Commerce Directive or DMCA were enacted. Since the EC has to live with the E-Commerce Directive, because citizens clearly support it, it does a trick. First, it says that direct liability does not apply in case you are covered by a safe harbour, while immediately stressing its limited applicability. The proposal says that to assess neutrality, it is necessary to verify whether the hosting provider plays an active role, including that it optimizes or promotes user generated content (the language originates from the L'Oreal v eBay and was much criticized in the literature).

Second, it imposes on some intermediaries (see below), including those intermediaries who remain to be covered by any safe harbour, an obligation to implement filters [aka stay-down]. It does so in art. 13 in two ways: (1) by stipulating that those with existing voluntary agreements "shall take appropriate and proportionate measures to ensure the functioning of the agreements" and (2) by imposing an obligation "to prevent the availability" of works not covered by such agreements, "including through the use of effective content identification technologies". In addition, intermediaries are obliged to report to all right holders (sic!) what kind of measures they use and how much their works are used via their services and how successful their are with blocking. Right holders should provide their reference files - but there is no legal obligation to this end, since it is a small "should" appearing in the recital.

When I say some intermediaries, I mean all "service providers that store or and provide to the public access to large amounts of works or other subject matter uploaded by their users". If you wondered, this does not only cover hosting providers, but easily also internet access providers or any other providers that are not even covered by any existing safe harbour. There is no explicit requirement that works are uploaded on their service, only that they store or provide access to large amounts of such works uploaded also by their users. Where they are uploaded, seems irrelevant.

Update: I mistakenly copied "or" language in the previous version; the text actually reads "and", so this seems to refer to hosting more clearly; though it still omits to state storage on their services. Thanks for spotting Pekka

Art 13 can thus impose filtering and reporting obligation on unprecedented number of service providers. Far beyond "only" hosting providers. How exactly the European Commission imagines this to be compatible with Sabam and Scarlet Extended, is not clear to me. This is flatly and with a straight face proposing what those judgements rejected with pomp and human rights language. No sophistication. Period.

What is also striking is that the proposal finally comes up with an obligation to implement counter-notice (art. 13(2)). However, with a major wrinkle. It only applies to filtering mechanisms, not to regular notice and take-down. But hey, who will care about regular notice-and-taken anymore, right? The last paragraph of art. 13 nicely shows the cynicism of the proposal. It asks the Member States to help with facilitation of best practices/standardization with regard to filtering technologies. Counter-notice standardization? Not important. The main point is that of filtering. We got the message!

This proposal is deeply worrying. The European Commission clearly wants to challenge the E-Commerce Directive, just without really saying it.

To summarize. First, its proposal tries to impose strict liability by extending right to communication to the public to anyone who is not providing mere infrastructure. And it does not even have balls courage to say in the actual text of the provisions, it just pretends so in the recitals. Second, it imposes a full-flagged filtering and reporting obligation on yet unknown number of service providers. 

Effectively, this proposal will petrify competition and raise barriers to entry to the digital single market. I guess I am too horrified to think of all the consequences yet.

PS: this is, of course, super-preliminary assessment; comments are super-welcome!

Friday, August 5, 2016

ECtHR To Hear A Case About Liability For Hyperlinking [+ Intervention]

Internet case-law of the ECtHR will soon be enriched. Magyar Jeti Zrt v Hungary is a new important pending case. It concerns liability for hyperlinks in the domestic defamation law and its compatibility with freedom of expression.

The applicant is in the case is an operator of the Hungarian news portal 444.hu which is used by approximately 250,000 users per day. The applicant often utilises hyperlinks embedded in the published contents, which lead readers to relating materials published elsewhere. On 5 September 2013 a group of football supporters travelling to Romania stopped at an elementary school in Konyár, Hungary. The pupils of the school were predominantly of Roma origin. After getting off the bus, the football supporters made racist remarks, waved flags; and one of them allegedly urinated on the school building. Some minutes later the football supporters got back on the bus and left the village.

Mr J.Gy., the head of the local Roma minority self-government, accompanied by a parent and one of the children attending the school, gave an interview to a Roma minority media outlet on the same day. During the interview, he referred to persons related to Jobbik, a right-wing political party in Hungary, which had been previously criticised for its anti-Roma and anti-Semitic stance. The video was uploaded to Youtube.com the same day. On 6 September 2013 the applicant published an article on the incident on the 444.hu website that referred to reports concerning the events in Konyár and included an embedded text hyperlink leading to the video available on Youtube.com. The text of the article itself did not mention the term Jobbik. On 13 September 2013 Jobbik initiated legal proceedings against several respondents, including the applicant, the head of the local Roma minority self-government making the allegedly defamatory comment, the Roma minority media outlet recording the video uploaded on Youtube and the operators of other Hungarian news portals, alleging that its right to reputation had been violated by the Youtube video.

On 30 March 2014 the Debrecen High Court established the responsibility of six out of the eight respondents, including the applicant, in respect of the defamatory comments made in the video. Regarding the applicant, the court found that in making available the Youtube video by providing a hyperlink leading to it, it had disseminated the defamatory statements. On appeal, on 25 September 2014 the Debrecen Court of Appeal upheld the judgment. The applicant now compaints that this ruling is a disproportionate interference with its freedom of expression. 

It is without doubt that the decision of the Court will set important limits for the future of freedom of expression online. Therefore, on Monday, European Information Society Institute (EISi) filed its third party intervention also co-authored by me. The submission explains the importance of hyperlinks for the functioning of the Internet and illustrates how imposing restrictions on their use can have strong adverse effects for our society.

The brief was prepared by me, students of the Tilburg Law School (Bruno Bautista) and attorneys & affiliates of Law Firm TRINITI and University of Tartu (Karmen Turk and Maarja Pild), as part of an Internet Policy Clinic that I run at the Tilburg Institute for Law, Technology, and Society (TILT).

We urge the Court to take into consideration the special content-neutral nature of a hyperlink and of their importance for innovative journalism and decentralized non-editorial speech. In line with Thoma v. Luxemburg, hyper-linkers should not be subject to unnecessary obligations to distance themselves systematically and formally from the referred content. The hyperlinks are already understood by general public, as also evidenced in this brief, as opinion-neutral references. 

Any restriction on the dissemination of the information in a form of liability, also inevitably diminishes the value of initial authorship. A strict rule regarding liability for hyperlinking will inevitably lead to self-censorship and over-restriction of legitimate content which this court already outlawed as impermissible forms of collateral censorship. We urge the court to rely on its Grand Chamber ruling in Jersild v. Denmark by holding that “unless there are particularly strong reasons for doing so”, imposing civil liability for assisting in the dissemination of statements made by another person by means of hyperlinks is a breach Art. 10 of the Convention. The states should be bear a heavy burden to justify why a democratic society necessitates a rule that sanctions its own citizens, let alone its journalists, for merely referring to what other people say. 

As recognized by this court in Editorial Board of Pravoye Delo and Shtekel v. Ukraine, the states should even underlie a positive obligation to create an appropriate regulatory framework to ensure effective protection of journalists’ freedom of expression when the journalists are engaging with third party speech online. This obligation is in line with the explicit legislative approach of some of the states which created clear liability exemptions to prevent imposition of liability for referring to third party content in their own hyperlinks. Although European Union decided not to address this topic under the E-Commerce Directive, it left the possibility open to its Member States to decide whether or not to regulate hyperlinks in the context of commercial activities on internet.  Austria,  Liechtenstein,  Portugal  and Spain  have developed unambiguous liability exemptions for the provision of links to third party content. In other countries this is a standard outcome based on their national tort laws.  It is therefore usual to prevent any liability to be imposed on the person who sets a link as long as he/she has no actual knowledge that the information is unlawful,  and has no control over the content to which it refers.

The ‘particularly strong reasons’ for holding a hyper-linker liable should depend on ‘all the circumstances of the (..) case, in particular the nature of the information contained in the shared material and the weighty reasons for the interference with the applicants’ freedom of expression’, but also his/her privileged position (e.g. being a journalist). The ECtHR has already accepted that criminal liability can be imposed for a specific type of hyperlinks in case the person concerned (1) acts with the intent, (2) is not a journalist, and (3) the information that he links affords lower protection than political expressions (Neij and Sunde Kolmisoppi v. Sweden). Such circumstances should in any case remain exceptional in their nature.

Therefore, the rule accepted by the Hungarian court, imposing strict liability on the mere sharing of information, cannot be considered as a necessary interference with freedom of expression in a democratic society.




  • Magyar Jeti Zrt Intervention ECtHR (.pdf)
  • Monday, May 2, 2016

    Accountable, Not Liable (Video + New Paper)

    The regular readers of this blog will know that I have spent last couple of years (and hours of blogging time) pondering on problems posed by injunctions that are issued against Internet intermediaries irrespective of their tortious liability. Today, I would like to share with you some of the fruits of this work - a law and economics paper analyzing this novel type of remedy and a video of my Stanford talk which summarizes some its findings. I hope you will enjoy both of them and already look forward to your comments. Hopefully, in couple of months, I will be able to share with you the announcement of my forthcoming book on the same issue, though with a more typical legal analysis of the European situation.



    The paper: Accountable, Not Liable: Injunctions Against Intermediaries (on my SSRN). Its abstract read as follows:

    An injunction is usually understood as an order requiring the person to whom it is directed to perform a particular act or to refrain from carrying out a particular act. This conventional definition of injunction addresses a person who acts against the law – an infringer – and should be stopped from doing so. Such a person acts in a way that the rights of other people prohibit. Seeking an injunction is thus nothing but the request of a right holder to an authority (court) for the individual compliance of a particular person with the abstract letter of the law. Injunctions against intermediaries, based on Art. 8(3) of the InfoSoc Directive and Art. 11(III) of the Enforcement Directive , however, do not target such persons. They address by-standers who (also) comply with the law. The basis for this kind of injunction is thus not an act of disrespect towards the rights of others, but the mere existence of circumstances giving hope to right holders, that if they are assisted by such a person, they will be better off. Put differently, such injunctions want to achieve better enforcement by seeking a help of intermediaries who can do more, but do not have to, as they did all the law required from them in order to avoid liability in tort.
    This paper thus, as its primary goal, examines a two tier model of regulating intermediaries. A situation where intermediaries do not owe any duty of care under tort law, but are still obliged by injunctions (accountable) to provide assistance. It undertakes a thorough law and economics analysis of Intermediary liability and conceptualizes the role of injunctions against non-infringing intermediaries. The analysis is structured as follows. In the first step, an economic analysis of tort law, injunctions and market transactions is used to understand functioning of the different liability regimes, such as negligence rule and strict liability (see Part 2 and 3). In the second step, the framework is applied to Internet intermediaries and the optimal legal regulation is suggested (see Part 4). In the third step, the findings are summarizes into policy lessons (see Part 5) pertinent to two currently pending debates: should the policy makers (1) replace notice-and-take down policy by the stay-down policy and (2) should they export, reform or entirely repeal the European policy of injunctions against non-infringing intermediaries based on Art. 8(3) of the InfoSoc Directive and Art. 11(III) of the Enforcement Directive.