Abstract
Article 270.2 of the Spanish Penal Code makes internet service providers responsible when their behaviour can be regarded as active and non-neutral facilitation of copyright infringements. This approach has resulted in an uncertain mechanism that encourages uncritical collaboration with copyright holders neglecting the social value of creativity in transformative uses of the work. This article suggests the analysis of authorship as a distinctive sign with the aim of reducing this normative uncertainty by a restrictive interpretation of exclusive rights, eliminating derivative uses for any notice and take-down procedure. At the same time, it is required the recognition of a counter-notification mechanism to protect fair use and transformative uses as key elements to protect social creativity.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Carpou (2016) p. 567 “(…) In the nondigital world, when an individual receives a cease-and -desist letter for a non-digital work (a painting, for example) alleging that the work infringes someone’s copyright, the individual is able to contest the letter while her work remains undisturbed. In the digital world, by contrast, takedown requests result in the removal of content as a first step, with any dispute over the fact of infringement occurring later. This creates the potential for chilling effects on free speech in the digital world only, with the notice-and-takedown mechanism serving as a form of pre-emptive censorship”. Blevins (2013), pp. 1833–1835 “(…) it creates incentives for internet platforms to become co-enforcers of third- party copyright holders (…) uncertainty expands the breadth of secondary liability, making it more likely that a platform will face damage or penalties (…)”.
- 2.
- 3.
Wong (2009), p. 1075; Heyman (2008), p. 455 “(…) What the fair use doctrine should be concerned with, then, is not what an author does when she creates-whether the second author changes the first author’s expression in some ascertainable or substantial way-but rather whether the reader perceives an interpretive distance between one copy and another (in other words, a lack of similitude)”.
- 4.
Thornburg (2001), p. 171 “(…) A rational ISP, then, will always choose to takedown when it receives a notices of alleged infringement. The safe harbour provisions turn the ISP into the copyright owner’s enforcer and the copyright owner will not need to file a legal proceeding or even directly confront the alleged online infringer (…)”.
- 5.
Urban and Quilter (2006), p. 687 “(… .) OSPs have significant financial disincentive to attempt to distinguish between spurious and valid copyright claims. Doing a more detailed and costly check on notices would often simply result in an assessment of risk of secondary liability in a grey situation, exactly what OSP’s hoped to avoid through legal safe harbour (…)”.
- 6.
Blevins (2013), p. 1875 “(… .) the practical effect of shifting enforcement costs to platforms will be overbroad removal of content as platforms owner operating under uncertain secondary liability standards would have incentives to remove any material that copyright owners have identified o may identify as an infringement (…)”. See as well, Yen (2000), pp. 45 ff.
- 7.
- 8.
- 9.
- 10.
- 11.
- 12.
Coombe (1991), p. 1859 “(..) Individuality and consciousness are embedded in and realized through language and share cultural symbols (…) subjectivity, then, is fundamentally dialogic: what is most characteristic of our humanity is that we are dialogical or controversial beings in whom language is a reality”.
- 13.
- 14.
Beebe (2005), pp. 704–710.
- 15.
- 16.
See for those tests, Carter (2013), p. 678 “(… .) fragmented literal similarity is based on literal elements scattered throughout an infringing work. Though the criteria for deciding fragmented literal similarity vary, the generally weigh the element’s qualitative and quantitative value to the copyrighted works (…)”. Khong (2007), p. 722 “(… .) a copyrighted work is to be abstracted into different levels of abstraction, the non-protection elements filtered out and what remains are to be compared with the alleged infringing work (…)”. Brashears “Total concept and feel or dissection: Approaches to the misappropriation test of substantial similarity” (1993), pp. 918–920.
- 17.
Thornburg (2001), pp. 151–160.
- 18.
Kreimer (2006), p. 31 “(…) efforts to generate proxy censorship by targeting intermediaries are less likely to be challenged in court than censorship efforts directed at speakers or listeners, and are therefore more likely to be consciously manipulated to suppress protected speech. Given the divergence between their interest and those of the speakers, intermediaries are unlikely to expend much time or energy contesting dubious demands that can be satisfied by sacrificing a marginal user of their services. Unlike a speaker, who has an interest in all of the profits to be earned from a determination that speech is protected, the intermediary’s interest is limited to the profits from speech conveyed over its own network, and a regulator intent on suppressing a particular type of communication can take advantage of that fact (…)”.
- 19.
Kreimer (2006), p. 40 “(…) there is an important class of regulation targeted at intermediaries where the claim that commercial forces will moderate censorship is almost wholly illusory. In the case of threatened criminal punishments, side payments will almost always be insufficient to induce intermediaries to avoid censorship. A speaker who is willing herself to risk imprisonment is not often in a position to ‘cash out’ that willingness and pay it to the intermediary. Moreover, the risk preferences of an intermediary regarding criminal conviction are likely to differ substantially from those of a committed first-party speaker. The threat of criminal conviction is not something that can be insured against by plausibly available policies (…)”.
- 20.
Longke (2019), pp. 153–154 “(…) the paper holds that the standard for determining the existence of the ISP’s criminal liability is (…) service provider’s direct control over illegal and criminal information” “(…) 1. ISP has control over illegal and criminal information and decides whether certain illegal on criminal information can be transmitted through certain channels and with certain scope (… .) the service provider is not responsible for safety management regarding illegal and criminal information beyond its influence and control (…). 2. The ISP’s control over illegal and criminal information is direct: 2.a. If an ISP has the capability to control over illegal and criminal information and such control is not direct but needs help on intermediation of other ISP’s, the former ISP’s management obligation in terms of criminal liability shall be denied. 2.b. In the chain of information transmission and dissemination, the ISP is only responsible for the illegal information of the first link and level under its direct control (…)”.
- 21.
Carpou (2016), p. 585.
- 22.
On the deficiencies of the NTD counter-notice in the USA, see Urban et al. (2017), p. 44 “(…) As rightsholders press for faster takedown from the major services, some DMCA Auto OSPs now respond to most takedown requests in minutes. Action on counter notices, on the other hand, is still measured in days or weeks. Service providers must restore content based on a valid counter notice no later than fourteen days after receipt, but also, no sooner than ten days—the period in which the rightsholder must decide whether or not to sue OSPs expressed concern about this statutorily mandated delay, pointing out the potentially dangerous effects on expression or competition. As one OSP described it, ten to fourteen days represents an eternity on the Internet for small businesses, for community sites where content has a short lifespan, or for political speech (…)”.
- 23.
On the abuse of notice and take down processes, suggesting a new normative criteria in the USA which is called “Anti-Slapp Relief” “(…) 1. The plaintiff lacks a legitimate economic motivation to preserve an established market for the licensing of its copyrighted works; 2. The defendants use of the work at issue advances the expression of basic facts or community matters of public concern (…)”.
References
Aide C (1990) More comprehensive soul: romantic conception of authorship and the copyright doctrine of moral rights. Toronto Faculty Law Rev 8:185–209
Beebe B (2005) The semiotic analysis of trademarks. UCLA Law Rev 51:621–704
Blevins J (2013) Uncertainty as enforcement mechanism: the new expansion of secondary copyright liability to internet platforms. Cardozo Law Rev 34:1821–1888
Brashears-Macatee S (1993) Total concept and feel or dissection: approaches to the misappropriation test of substantial similarity. Chicago-Kent Law Rev 68:913–937
Carpou Z (2016) Robots, pirates and the rise of the automated takedown regime: using the DMCA to fight piracy and protect end-users. Colum J Law Arts 39:551–589
Carter M (2013) Applying the fragmented literal similarity test to musical work and sound recording infringement: correcting the Bridgeport Music, Inc. v Dimension Films Legacy. Minn J Law Sci Technol 14:669
Coombe R (1991) Objects of property and subjects of politics: intellectual property law and democratic dialogue. Tex Law Rev 69:1853–1880
Grinnell C (2009) From consumer to prosumer to produser: who keeps shifting my paradigm? We do! Public Cult 21:577–598
Heller M (1998) The tragedy of the anti-commons: property in the transition from Marx to markets. Harv Law Rev 111:620–688
Heyman L (2004) The birth of the authornym: authorship, pseudonymity and trademark law. Notre Dame Law Rev 80:1378–1448
Heyman L (2008) Everything is transformative: fair use and reader-response. Columbia J Law Arts 31:445–466
Hughes J (1998) The personality interest of artists and inventors in intellectual property. Cardozo Arts Entertain 16:81–182
Khong D (2007) Copyright doctrines, abstractions and court error. Rev Law Econ 3:715–743
Kreimer S (2006) Censorship by proxy: the First Amendment, Internet Intermediaries and the problem of the weakest link. Univ Pennsylvania Law Rev 155:11–101
Ku R (2002) The creative destruction of copyright: napster and the new economics of digital technology. Univ Chicago Law Rev 69:263–324
Landes W, Posner R (1989) An economic analysis of copyright. J Legal Stud 18:325–353
Lange D (1992) At play in the fields of the word: copyright and the construction of authorship in the post-literature millenium. Law Contemp Probl 55:139–151
Lemley M (1997) Romantic authorship and the rhetoric of property. Texas Law Rev 75:873–906
Longke T (2019) On an internet service provider’s content management obligation and criminal liability. J Eastern-Eur Crim Law 1:145–158
Lunney G (1996) Re-examining copyright’s incentives-access paradigm. Vand Law Rev 49:483–656
Pessach G (2003) Copyright law as a silencing restriction on non-infringing materials: unveiling the scope of copyright’s diversity externalities. 76. South Calif Law Rev 76:1067–1104
Radin M (1982) Property and personhood. Stanley Law Rev 34:957–1016
Rose M (1992) The Author in Court: Pope v Curl 1741. Cardozo Arts Entertain Law J 10:475–493
Rosenblatt E (2019) Fair use as resistance. UC Davis Legal Stud Res 9:377–400
Rotstein R (1992) Beyond metaphor: copyright infringement and the fiction of the work. Chicago Kent Law Rev 68:725–804
Thornburg E (2001) Going private: technology, due process and internet dispute resolution. U.C Davis Law Rev 34:151–220
Urban J, Quilter L (2006) Efficient process or chilling effects? Takedown notices under Section 512 DMCA. Santa Clara Comput High Technol Law J 22:621–693
Urban J, Karaganis J, Schofield B (2017) Notice and Takedown in Everyday Practice. UC Berkeley Public Law Research Paper, N° 2755628,1-182
Wong M (2009) Transformative user-generated content in copyright law: infringing derivative works or fair use. Vanderbilt J Entertain Technol Law 11:1075
Woodmansee M (1984) The genius and the copyright: economic and legal conditions of the emergence of the author. Eighteen Cent Stud 17:425–448
Yen A (2000) Internet service provider liability for subscriber copyright infringement, enterprise liability and the first amendment. Georgetown Law J 88:1–56
Yoo C (2004) Copyright and product differentiation. N Y Univ Law Rev 79:212–281
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2023 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this chapter
Cite this chapter
González, J.I.M. (2023). Ceilings for the Criminal Liability of Internet Service Providers. In: Demetrio Crespo, E., García Figueroa, A., Marcilla Córdoba, G. (eds) Crisis of the Criminal Law in the Democratic Constitutional State. Legal Studies in International, European and Comparative Criminal Law, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-031-13413-5_15
Download citation
DOI: https://doi.org/10.1007/978-3-031-13413-5_15
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-031-13412-8
Online ISBN: 978-3-031-13413-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)