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LEGISLATIONThe Copyright Act of 2007 (Unofficial English Version) [Section 18 establishes the permitted uses within the framework of the Copyright Act, these permitted uses are set out in Sections 19-30. Section 26 deals with “temporary copies” created in the context of communications network, operated by an intermediary entity. According to Section 26 such transient copying, including incidental copying, is permitted if the copying is: (i) an integral part of a technological process and the only purpose of which is to enable transmission; (ii) between two parties, thorough a communication network, by an intermediary entity, or any other lawful use of the work; (iii) provided the said copy does not have significant economic value in itself. In addition, Section 58 defines an “Innocent Infringer”. In case an infringer “did not know, or could not have known, at the time of the infringement, that copyright subsists in the work” such innocent infringer “shall not be obligated to pay compensation in respect of the said infringement”, although this section is quite narrow and it could be applied in certain cases to intermediary liability.] Tort Ordinance (New Version) (Unofficial English Version) [Stipulation of the Tort Ordinance and common law tort law could be made use in the context of intermediary liability with respect to copyright issues because Section 52 of the Copyright Act states that “Infringement of copyright […] is a civil wrong and the provisions of the Ordinance on Torts (New Version) shall apply mutatis mutandis subject to the provisions of this Act”. Section 12 of the Tort Ordinance states that “for the purposes of this Ordinance, any person who joins or aids in, authorises, counsels, commands, procures or ratifies any act done or to be done, or any omission made or to be made, by any other person will be liable for such act or omission.” This broad definition could be used to establish intermediary liability in the context of copyright infringement. In fact, reference use of intermediary liability through tort law has been made by The Supreme Court in its decision in the case of The Football Association Premier League Ltd v John Doe.] Unjust Enrichment Act, 1979 (Unofficial English Version) [This act does not deal specifically with Intermediary Liability but it could be used in certain cases to claim unjust enrichment by the intermediary by the infringing act. Section 1 states “when a person (hereinafter: beneficiary) obtains any property, service or other benefit from another person (hereinafter: benefactor) without legal cause, then the beneficiary will make restitution to the benefactor, and if restitution in kind is impossible or unreasonable, he will pay him the value of the benefit.” Section 2 gives the Court discretions with regard to exemption of the” beneficiary from all or part of the duty to make restitution under section 1, if it finds that receipt of the benefit did not involve any loss to the benefactor, or that other circumstances render restitution unjust.”]
BILLS AND PENDING PROPOSALSE-Commerce Bill, 2011 [The proposed bill, which was first introduced in its original form in 2008, seeks to regulate e-commerce including the liability of ISPs, introducing a notice and take down safe harbor for ISPs. However, it currently seems as if the implementation prospects of the bill are quite low.]
DECISIONS
Superior Courts
Supreme Court, Civil Appeal 9183/09, The Football Association Premier League Ltd v John Doe (2012)[copyright, streaming, free speech, tort law, unjust enrichment, contributory liability, intermediary, users’ rights, ISPs][This case involves unauthorized streaming of live soccer games of the English Premier League. The Supreme Court suggests in dicta several possibilities to further establish Contributory Liability with regard to ISPs. Since no arguments were raised regarding Contributory Liability in this case, the discussion is merely illustrative. In this case the English Premier League requested that an ISP reveal the name of the person who infringed on its copyright. Justice Neal Hendel argued that direct liability against ISPs could be established through the duty of care found under Negligence, but Justice Hanan Melcer argued that Contributory Liability with regard to ISPs should be based on unjust enrichment. The Court concluded that since the argument of Contributory Liability was not raised in this case, no decision will be reached on this issue.]Supreme Court, Civil Appeal 5977/07, the Hebrew University of Jerusalem vs. Schocken Publishing House (2011)[copyright, textbooks, free speech, tort law, contributory liability, intermediary][The decision in Hebrew University v. Schocken is considered the leading authority on Contributory Liability in the context of copyright law. In this case, the Supreme Court introduced Contributory Liability doctrine into copyright law. This case involved copying of textbooks. The Israeli Labour Party subsidized a student club called “Teh Ofek” (Horizon Cell) at the Mt. Scopus Campus of Hebrew University. As an incentive to get students involved, they provided cheap versions of a course textbook entitled “Traditional Japan,” the publisher sued the student club, the Labour Party and the University. The Supreme Court has recognized that in certain specific circumstances courts can use the doctrine of Contributory Liability from Tort law to assess whether the action of an intermediary is infringement of copyright. The Court stated that Contributory Liability will be recognized only when three conditions have been met: (i) there was actual direct infringement; (ii) the contributor had actual knowledge of the direct infringement; and (iii) there was substantial, significant and actual contribution by contributor to the infringement. Supreme Court, Civil Appeal 1636/98, Rav-Bariach Ltd v SDR Ltd, 2001[patents, contributory liability, intermediary, US patent act][This is the first case which introduced the doctrine of Contributory Liability into the patent system in Israel, taking inspiration from the Contributory Liability found in the US Patent Act. In a sense this case has established the basis on which Contributory Liability could be more easily introduced into copyright.]
Lower Courts
District Court of Tel-Aviv, 49918-05-12, Amir Savir v. Google, July 5, 2015[defamation, hosting provider, search engine, Google, blog post, tags] [(1) The case was brought by Ami Savir against the owner of the website court.org.il and Google. Mr. Savir, an Israeli attorney was mischaracterized as having committed five acts of unethical attorney behavior when in fact he only represented the Israel Bar Association in disciplinary proceedings related to the liable attorney. Due to tags added to an original blog post from court.org.il, Google's search algorithm made it appear as if Mr. Savir, rather than the party he repesented, was the attorney who was convicted. (2) The court reversed a magistrate’s preliminary opinion, holding court.org.il liable but not Google, and held that Google must remove search results that are clearly defamatory in nature.] [See also Columbia GFE] District Court of Tel Aviv , Civil Action 37039-05-15, ZIR”A et al. vs. Anonymous, Bezeq Ben Leumi et al., July 1 2015[copyright, freedom of expression, free flow of information, censorship, privacy, hosting provider, streaming software, access provider, preliminary injunction, contributory liability] [(1) Several content providers sued ISPs to block access to the websites allowing users to download a streaming software called “Popcorn” which allows users to stream video content off the internet by connecting users to allegedly copyrighted content through other sites. The content providers also requested the details of users making use of Popcorn. (2) The court mentioned the UK case about the use of Popcorn software, Twentieth Century Fox Corp. v. Sky UK Ltd., [2015] EWHC 1082 (Ch). However, the Court relied on the Israeli Supreme Court Ruling in 4447/07 Rami Mor vs. Barak ITC (1994) Bezeq international, with regard to revealing the indemnity of users of ISP. The Judge ruled that at this stage when the infringement was not proved, and it was not proved that the defendant was liable or has caused damages to plaintiffs there is no room to provide an injunction to the ISPs compelling them to reveal the identities of ISPs users. (3) The Judge differentiated this case from NMC United Entertainment LTD et al. vs. Bloomberg et al. (see below), on several grounds, one of which was the nature of the proceeding in this case, a preliminary injunction, and the nature of the alleged infringement. The Judge added that in this case, the burden on the ISP is much harsher since shutting down a single website is not the same as monitoring and closing each website which enables users to download the Popcorn software. In addition, the Judge noted the risk of asking ISPs to function as internet censors, against the damage to plaintiffs’ copyrights. The Judge noted that when the legal solution of asking ISPs to censor websites is not efficient and there is a risk of hurting the flow of information, without establishing proper scope of operation for the ISPs and without introducing the checks and balances by the legislative branch, then the balance of burden does not allow the court to approve such a preliminary injunction. (4) The Court in addition declined to approve the settlement between the sides, on the grounds that the claims of the users and of the Attorney General of Israel were not submitted to the Court, therefore, he did not approve it as a verdict. District Court of Tel-Aviv, Civil Ruling 33227-11-13, NMC United Entertainment LTD et al. vs. Bloomberg et al., May 12, 2015[copyright, hosting provider, access provider, streaming, downloading, unjust enrichment, contributory liability, injunction] [(1) This case involves unauthorized streaming and download of music recordings through the website Unidown. Five Israeli music record companies sued the owners of the website Unidown and several ISPs claiming that the website enables users to listen and download music recording copyrighted by them without authorization. The Website claimed that it merely functions as a “search engine” allowing users to listen to music recordings through youtube. (2) The District Court found that Unidown should be viewed as an infringing platform which enables the unauthorized download of copyrighted works in disguise of a “search engine”. The Judge claimed the problem is not with the technology but with the use been made of it. The court found with regard to the download function of Unidown, that the website enabled users through other websites to download music recordings unauthorized, and therefore, found it guilty of contributory liability to copyright infringement. (3) With regard to the streaming option of Unidown, the Court found that since the website was directly connecting users to youtube, there was no direct infringement by the users and therefore, there cannot be contributory infringement with regard to the streaming option. (4) Since the Judge found Unidown guilty of contributory infringement (for the download function) he does not settle the question of whether embedded links or content the way done by Unidown could give rise to other liability claims such as unjust enrichment or infringement of moral rights, and leaves the question pending. (5) The Judge claims that finding Unidown guilty of copyright infringement enables the Court to order the sued ISPs to block access or take down the Unidown website. In giving his opinion that the Court can order the ISPs to shut down or block access to an infringing websites, the Judge relies among others on a UK verdict, Sea Shepherd UK v. Fish @ Fish Ltd. [2015] UKSC 10 (March 4, 2015). The Court orders the main defendants (the owners of Unidown) to close the website, and orders the ISP hosting the website to block access to the website and pay attorney fees to plaintiffs. In addition, the Court allows the ISP to appeal the order to block the website in case such action will involve high costs.] District Court of Tel-Aviv, Charlton Ltd. v. Bezeq International & Co., 2014 (PENDING) (official name of case not yet available)[streaming, sport, contributory liability, ISPs, take down, users’ identities] [In early April 2014, Charlton Ltd. filed a lawsuit in the Tel-Aviv district court against three major Israeli ISPs. Charlton is arguing that the ISPs have contributory liability with regard to streaming of sports events in which Charlton has copyrights. Charlton argues that the ISPs have the ability to easily monitor and prevent the infringement but choose not to act in that regard. Charlton is asking the court to instruct the ISPs to take down dozens of websites and reveal the identities of many users.]District Court of Tel-Aviv, 10695-09-09, Nav N Go Kft. v. Goltzman, 2011 [copyright, navigation software, hyperlinks, contributory liability, notice & take down, supervision] [The district court in Tel-Aviv ruled that the notice and take down procedure does not have a legal standing in Israel, therefore, the argument that the website should have operated on a notice and take down basis is wrong. The Court ruled that in the absence of knowledge, the ability to supervise the information on the website is in itself not sufficient to establish knowledge of infringement. In addition, the website did not fit the two exceptions established in ALIS v. Rotter, encouraging infringement or “forbidden forum”, therefore, the website was not liable under Contributory Liability.] District Court of Tel-Aviv, 567-08-09, ALIS - Association for the Protection of Cinematic Works v. Rotter.net Ltd., 2011 [copyright, website, movies, hyperlinks, contributory liability, notice & take down, ISPs] [Influenced by the Supreme Court’s decision Hebrew University vs. Schocken, the district court in Tel-Aviv. The case involved a website which posted Links to copyrighted works which were posted without authorization. The Court examined the liability of the website for posting only the links and not the actual infringing works. The Court ruled that website could not be held directly liable for posting links to infringing works, as the posting of the links are not infringing on their own, therefore, there is no direct liability. The Court takes into consideration the recent Supreme Court decision Hebrew University vs. Schocken, and rules that in order to establish the element of actual knowledge of the infringement for Contributory Liability, there should be a notice and take down procedure. If intermediary operate a notice and take down procedure they should have a safe harbor against Contributory Liability. The court ruled a website will be found guilty of Contributory Liability only if it was provided a notice and it did not take down the infringing work in due time. The Court further elaborated that there are two cases in which, even without a notice and take down the website will be found guilty of Contributory Liability: i) the website is actively encouraging the infringing activity; ii) the website hosts a “forbidden forum” - a specific forum in a website is dedicated to infringing activity.]
OTHER RESOURCES
Haifa Center for Law & Technology (HCLT), http://weblaw.haifa.ac.il/en/Research/ResearchCenters/techlaw/Pages/abou...Orit Fischman Afori, Contributory Infringement in Israeli Copyright Law, 52 HAPRAKLIT LAW JOURNAL (Lawyers Bar Law Journal) 3 (2012) (Hebrew) Niva Elkin-Koren, The New Intermediaries in the Virtual Public Forum, 6 Mishpat Umimshal 381 (2003) (Hebrew)
CONTRIBUTORS
Dr. Avi Osterman Associate Yuval Levy & Co.Email: avi.osterman at lawnet.duke.edu
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