Author's Information:

Xiaodong Ding: Professor, Faculty of Law, Renmin University of China; Vice Dean, Law and Technology Institute

Abstract: 

The state of knowledge plays an important role in platform indirect infringement, for the fault determination in joint infringement and notice in the safe harbor mechanism both are closely related to knowledge. However, using the state of knowledge to determine platform's fault and responsibility is only suitable for analyzing cases where platforms equally participate in specific instances of infringement. In this type of infringement, it is possible to analyze whether the platform "knew" or "should have known" in the individual case, whether it was at fault and whether it exercised reasonable care. However, a typical example of platform indirect infringement arises in large-scale governance contexts, where the judgment of "knowing", "ought to know" , or due diligence should be based on whether there is an overall fault of governance. Factors for this judgment include the potential harm and governance necessity, legality of activities that governance could endanger, difficulty for platforms to distinguish between legal and illegal activities, and whether direct infringement regimes are more effective. Starting from the characteristics of large-scale governance-induced infringement of the typical platform indirect infringe-ment, it is possible to coordinate traditional joint infringement with safe harbor mechanism. The uncertainties in analyzing the state of knowledge in scenarios such as algorithmic recommendations can be resolved by subdividing the field and accumulating cases, while eliminating the paradox of platforms that "do nothing for nothing wrong" or "do more for more mistakes".

Key words: platform liability; duty of care; notice to delete; large-scale governance-in-duced infringement; algorithmic recommendation; state of informed