Towards Algorithmic Justice
Chapter 7: Intermediary liability
AbstractThe safe harbour provisions were introduced before the ascent of one subspecies of the OSP: the social media provider. An additional advantage of the concept of the safe harbour provisions, it was assumed, would be that they would not have to filter inappropriate content, so that they could primarily focus on their core activities, without having to fear being sued for intellectual property infringements. However, this idea does not correspond well with reality. For social media providers the risks of being sued by content holders have become substantial, because of the massive amount of user-generated content they are hosting. Social media are already swamped by notice and takedown requests by alleged content holders. Contributory liability, inducement as part of contributory liability and vicarious liability are grounds that can pierce the veil of the safe harbour provisions and enable trademark holders to sue the OSPs, including social media providers. OSPs in general and social media providers in particular are not incentivized to proactively monitor for infringing material. The efficacy of self-regulation has been insufficient so far.
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