My Comments on Safe Harbor Cases

The U.S. and E.U. have similar safe harbor provisions, although DMCA safe harbor is for four information providing functions: transmitting (the “mere conduit” function),caching,hosting,and searching;while E-Commerce Directive(E.U.) focuses only on the first three. But the question is, whether SABAM(Belgium) is still in line with the equilibrium organized by this safe harbor provision? And how about Grokster?

I believe both of them are already beyond the line, but on two different issues.

First, Grokster on “actual knowledge”. There are unlimited facts beside notice could become an evidence to prove “actual knowledge”. So Grokster may not be in conflict with these two precedents (Hendrickson and ALS Scan). But without direct evidence of knowledge, I do not think Grokster’s reasoning is persuasive. Anyway, knowledge of possibility and knowledge of actual, specific infringement are totally different. Even Grokster did know some users may infringe and did inspect, but how could they know if one piece of specific video record is infringed or authorized? So even it is true that Grokster did predict and wish users infringe, it is still not a liable “actual knowledge”, unless evidence tells Grokster has reason to know specific infringement action, or does abet.
Second, the scope of “take back” obligation, on which I believe SABAM is beyond the line of justice. The technical measures to block or filter required by court, as expert testimony, are expensive and not waterproof, since even the best one still blocks some legal contents while lets some illegal contents go. Is requirement of an expensive and technically ineffective measure too much more than a merely “take back”?

I wish Viacom v. Google would not become the next SABAM or Grokster, which created unreasonable burden on technique service provider. While law does not punish producers of guns, which I can not find any substantial use other than hurting, killing or threatening, why should we be so harsh to technique service providers?