Author

Ding Xiaodong, Deputy Dean and Professor, Renmin University of China law school.

Abstract

The safe harbor institution, which centered on notice-takedown rules, faces challenges. There are different versions of the safe harbor institution, and there may be conflicts in its application, leading to tensions in the protection of the rights and interests of all parties involved. The fundamental reason for these challenges lies in the fact that typical platform indirect infringement has the characteristics of large-scale governance infringement, which is different from traditional two versus one joint infringement, and cannot be divided into independent traditional infringement. Only in a few cases where the platform is specifically involved, indirect infringement by the platform is similar to traditional joint infringement. In typical platform indirect infringement, the notification deletion rule has the characteristics of reporting governance, that is, the notifications received by the platform should be regarded as reports, and the measures taken by the platform should be regarded as governance mechanisms. The safe harbor system should be restructured, whether it is notification requirements, counter notification measures taken by platforms after receiving notifications, or measures taken by platforms such as notice-takedown or notice-staydown. Different versions of the system have no inherent advantages or disadvantages, and should be designed according to the governance needs and characteristics of the platform. Platform should have a certain degree of self-governance on safe harbor rules. When Law regulates platform rules, it should align platform interests with social interests.

Keywords:safe harbor rules;notice-takedown;joint infringement;platform governance;indirect infringement;algorithmic filtering