Liability of Intermediaries for Copyright Infringements on Social Media

Nick Ilsø

Student thesis: Master thesis

Abstract

Social media services have proved to be suitable for copyright violations due to their structure and utility. The magnitude and rate of this issue has never been seen in the analog world before. In addition users have the option to remain anonymous, which has impeded the copyright owners’ possibility of prosecution of the primary offender. For this reason, the courts have been focusing on the providers of social media services because they are easier to identify. It has opened a central legal question of whether a provider of a social media service may be partly responsible for its dissemination of information, which is actually carried out by somebody else. The legal part of this thesis uses the judicial dogmatic method to examine whether the intermediaries could incur liability to their involvement. It is concluded that existing Danish law contains legal basis, so that the intermediaries may be held responsible. However, the responsibility of the intermediary is enclosed by the implemented e-commerce directive art. 14 (EHL § 16). Still, at the same time the interpretation of this provision has been debatable, which is why there is legal uncertainty in the EU. The thesis concludes that the intended purpose of removing the diverge legal status in the EU, hasn’t been succesfull. The same conclusion was also made in the case of a hearing in the EU about the future e-commerce inside the EU. The legal situation of copyright violations seems to move towards the American DMCA. The development of technology has even made it significantly easier to create, distribute and share copyright works. In that regard debaters have stated that copyright is an obstacle to social efficiency. By using the judicial economic method, the economic component of this thesis, will in its introduction conclude why the need of copyright law still exists. After the introduction the aspects of the legal liability will be examined and it is stated why it is economically efficient to put the responsibility on the intermediaries. After this, the Kaldor-Hicks criterion is used in a cost-benefit analysis on whether the European or the US liability regime is maximizing the welfare of the society by copyright violations on social media services. The conclusion to this is that a vicarious liability regime with notice-and-takedown is Kaldor-Hicks efficient. Based on the legal and economic analysis the thesis is completed with a discussion on how the current regulation can lead to an optimal judicial- and market condition.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2016
Number of pages88
SupervisorsJan Trzaskowski