Introduction
Intermediaries are third party organizations that offer intermediation services between the parties trading amongst themselves. Such organizations act as ducts for services offered by a supplier to the relevant consumer. Value addition to the service in question is a key aspect of the trading platform offered by such intermediaries, which is highly improbable if the trading is done directly. Provision of a trading platform for any kind of electronic commerce is the key link of the existence of an intermediary.
As existing in the technological age the surfaced usage includes the financial militaries along with the insurance sector. Financial services where insurance brokers, mortgage brokers and financial advisors offer select intermediation services for and in the supply of financial products such as mortgage loans, insurance premiums and investment services and products.
The intermediaries find their relevance in the Barter system in the following manner for in the aforementioned system, the intermediary is a person or a group who stores valuables in practices such as trade until those are needed. Parties to such transaction have space available to take delivery of them and store them or until and unless the requirements that follow are met. Facilitator of a contract between two parties is also an intermediary.
Classification of intermediaries is very important aspect of any transaction or for understanding purposes. Such can be classified as merchant intermediaries and or as accountant intermediaries. The landmark case of Baile and Bakos (1997) analyzed a number of prevalent case studies and jurisprudence and thereby identified four such rules and duties of electronic intermediaries inclusive of information aggregating, provision of trust, matching and meeting of minds and facilitation.[2]. The tagline of information economy has been recently glued to economy yet till date the market has always relied on the exchange of relevant information.
Neoclassical model of economics has largely ignored the importance of information[3]. As per the assumptions of a neoclassical model of the market, the market information should be perfect wherein the transaction costs are low whereas in reality such a perfect market is impossible. Actors of such structures are not having the adequate and asymmetric information so they shall and they do make decisions based on bounded rationale. The aforementioned lack of perfect information rests and results in increased transaction costs for the sellers as well as buyers.
Traditionally the intermediaries in question have served to reduce such information related transaction costs. An economic agent is what an intermediary shall act as, which in turn helps buyers and sellers find each other and help in executing a transaction stacked. In addition to that the said intermediaries help in order to classify followed by sorting the market information and finally distribute the market information and goods. The role of intermediaries does not end at the behest of distribution of the goods and services but has grown and become more specialized as advances in transportation as technology increases the size and complexity of any such market place.[4]
As for the present day, however, advances, which take us into far future, threaten the role of a tradition intermediary. If the logs of the World Wide Web were to be checked such technologies transform the said locale of any such business transaction-taking place under themselves from the traditional to the cyber market place. The Internet does exponentially expands the scope and the size of any said market, it also give direct link access in between the seller and the consumer. Businesses do advertise and market directly to the consumers whilst the said consumers employ and enjoy web tech capabilities to seek out the services they seek. Disintermediation is what is addressed by such technological capabilities of today’s era. And thus eliminate the middleman in any such transaction.
Advancement of the paradigm concerned is shifting its focus on the html space from the traditional goods to such information goods and services thereby entering into a true information economy. Infrastructure of the Internet adds value to such information by the enhancement of the ability to retrieve, filter, store, repackage and distribute the same.[5] Information can be very easily and in accordance to the consumer/ seller/ retailer being turned into a commodity and be bought or sold at a market place. Usage of Internet for businesses now days can attract a huge client base and opportunities. Information about credit cards/ bank accounts and other personal data.[6] Online businesses, in today’s era collect consumer data and sell it for direct marketing. Business can, truly, maximize profits and minimize transaction costs. Thereby proving that information commodities are not only intangible goods but also personal information is negatively politicized.
There is, however, a greater potential for the information, personal, to be misused by such Internet based businesses. Capitalizing on consumer information compromises on consumer’s privacy rights and loss of property.[7] Consumers never have any kind of control over how their information, personal, shall be used. Not so surprisingly, there has been a relevant concern in pertinence to consumer privacy.[8]
The conceptual net of an intermediary and its conceptualization
Any question related to the success rate of an intermediary shall be dealt with once the prospect of intermediaries is clear to us. Examination of the aspect of reduction of uncertainties in digital age also has to be dealt with caution and should be preceded by laying out a conceptual framework which would inherently focus on uncertainties in the digital age of today. The key aspect of the digital information is to be understood if at all we intend to find out what role an intermediary does play in our economic system. Such hitting the nib of concepts will serve as a basis and further when intermediary is analyzed both in historical and present-day markets.
Information and how it is relevant
Information is an ambiguous aspect, which has started to affect the economy in the last 100 years, and therefore needs to be addressed.[9]Given the focus of this thesis on the role and liabilities of an intermediary, a definition, which aptly relates to the same, exists.[10] Anything which can be exploited to remove/ reduce uncertainty in decision-making is information.[11] “‘Depression of individuals’/ the subjective belief of distributions over all state of the world is what uncertainty can be defined as”.[12] Thereby information is any diction which a user/ individual receives and that reduces the uncertainty in prevalent in his current environment; this is referral to the product, its price and the like.
Uncertainty has in the past created markets for information. Wherein agents are un-aware of the future event; the quality of the product, the honestly another person carries, they seek information to reduce uncertainty.[13] Information has always decreased the risk involved in complex and complicated transactions. Risk, as defined is “the potential for loss when uncertain future events might cause harm to the economy”.[14] The understanding of the exploitation of information it is first, absolutely required to remove any such queries.
Information can largely be described by properties, which hold a common referral value. Information for one is an intangible source and resource and a good, which does not have any materialistic value.[15] In continuance, information is a highly fungible reserve. All information can be described by common properties.[16]Information trading can be a barter system trading and can be exchanged as a resource for another information or its source. The value of information always does vary with the perception and requirements of the current user.[17] The nature/ significance and the value of information vary according to its use. The production of information goods requires high fixed costs and comparatively low marginal costs.[18] Information, as we may understand is costly to produce but very cheap to be reproduced.[19] Information trading is a very profitable venture very much unlike the tangible goods and services. Post the initial payment, information can be used, reused and recycled any number of ways without any sort of additional costs. In the similar manner, information can be replicated at zero value and without any sort of limitation bar. Information never deteriorates or goes rugged unlike tangible goods. Information, however, may become obsolete and or untrue with the passage of time and its value may suffer because of that.[20]
A common feature that creates uncertainties in markets all together is the non-exclusivity and information is a non-exclusive product.[21] For referral the transfer of information in between a producer and a user, only one single copy of the information is actually mortgaged. The production house keeps the actual information. Thereby giving the producer the advantage of sharing and/ or using that piece of information again and again. In the similar manner, when the good is sold, the seller enjoys its subsequent benefits.[22] The information given to the seller can be replicated and sold by the buyer without him having to give any information about the aforementioned transaction to the seller. In such cases, the seller loses the compensation for the future use of the information so transacted. Disclosure is also an issue in case of the information being non-exclusive because such commercial use of the information may be revealed to others. Additional market uncertainty develops when such agents hesitate in publishing information and it is likelihood that the agents are likely to invest comparatively less in the production of information and its knowledge.[23]
Uncertainties in markets also develop because the information’s true value can never be predicted.[24] The consumer can never know the value of information before he buys the same. The exhibition of the information by the seller before selling has a way to create certain other uncertainties as well. A traditional buyer is always at risk, never he shall know the surest nature of the information being transacted, purchase. Under-development of markets is also a repercussion of such uncertainties.
Consideration of such unique persona of a piece of information, we are bound to ace that information does not fit comfortably in the neo-classical market system and its economy. Boisot in 98’ pointed out that the problem of neo-classical economics has been addressed schizophrenically.[25] Information is treated as a free good by the economic system and not subject to trading yet on the other had it is being traded. Efficient markets gain a perfect foresight as a support to the information-trading era and practice.[26]
Overcoming the problem of imperfect information and information symmetry, a mediator can be appointed who would in –short mediate between the buyer and the seller/ creation of any such agent is a solution, a mediator w/ agent who would act in both the buyer and sellers interests. The repeating of dealing and reputation affects would discourage misrepresentation of such information to the buyer. Such a solution aligns all kinds of incentives in between producers and users. Thus, a third party -an intermediary-reduces information asymmetry.
Neoclassical finances fails to take into attention the uncertainty of intelligence, requiring alternate principles to explain the business of markets. Such two theories are hereby discussed.
Agency Cost theory
An agency cost is a financial concept concerning the rate to a "principal" (an organization, person or assemblage of persons), when the principal selects or hires a "mediator" to act on its behalf. Because the two parties have diverse interests and the manager (mediator) has more information, the major (party with the issue) cannot directly ensure that its agent is continually acting in its (the principals') best welfares.[27]
Mutual examples of this cost include that which are tolerated by shareholders (the primary), when corporate organization (the agent) buys other corporations to expand its market, or spends currency on wasteful pet schemes, instead of maximizing the value of the business's worth; or by the voters of a politician's area (the principal) when the representative (the agent) passes legislature helpful to large suppliers to their campaign rather than the supporters.[28]
Though effects of help cost are near in any agency connection, the term is most used in trade contexts.
Transaction Cost theory
In social science and connected disciplines, The value of a deal may be a value incurred in creating associate economic exchange (restated: the price of taking part in an exceedingly big/growing market).[29]
Transaction prices are divided into three broad categories:[30]
Search and data prices are unit prices, like those incurred in deciding that the specified functional article is accessible on the market; that has all-time low worth, etc.
Bargaining prices are unit specific prices in which case the buyer needs to come back to an appropriate agreement with the opposite party to do the dealings, draw up associate applicable contract then on. In theory of games this can be analyzed for example with the game of chicken. On quality markets and in market microstructure, the dealings value is which a very few perform in the space between the bids and rise.
Controlling and social control prices are unit specific prices that tend to create positive scenarios so that the opposite party sticks to the terms of the contract, and taking applicable action (often through the legal system) if the behavior of the opposite parties seems questionable. For example, the customer of a brand new automotive faces a spread-jam of various dealings prices. The search prices are the prices of finding an automobile and deciding the car's condition. The dialogue focuses on the diversification of the prices thereby negotiating upon a price with the retailer.
Internet Service suppliers and Their Liability
The DMCA defines ‘service provider’ in two such ways that, each is applicable to totally different subsections. A ‘service provider’ as ‘an entity giving transmission, routing or providing the relevant connections for digital on-line communications, between or among points mere by a user, of the material of user’s selection, without modification to the content of material as sent or received’,[31] the second half of the section states that a ‘service supplier’ is loosely outlined as ‘a provider of online services or network access, or the operator of facilities so required.’[32] This broad definition is aimed directly on the half of the framers to embrace universities and different establishments that offer Internet access to their students and researchers, etc. Moreover, it is conjointly broad to embrace the current ISPs, as well as suppliers of new services in the future.[33] The four main provisions of the DMCA address varying functions of the said associate ISP. In Section 512(a) protection is given for the passage operate and it protects ISP for ‘transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service supplier.’ Section 512(b) limits liability of associate ISP for caching and Section 512(c) protects storage of material on the provider’s system or network at the direction of the user and finally, ISPs who offer data location tools such as links or directories that are also protected, subject to bound circumstances.[34]
Despite varied laws protective IPR; it is still associate enormous task to keep a check on the copyright infringers on the web. Several lobbying teams and especially those who are acting as individuals in the music industry[35] in USA were in favour of holding ISPs liable for copyright infringement by the subscribers. It is important to take note of the truth that there is a fundamental distinction between on-line services involving transfer of content and the services themselves providing the contents.[36] Though, it is truthful enough to hold ISPs liable in the latter situation, it is transparently unfair to hold ISPs liable for the infringing actions of their subscribers. ISPs can be liable for copyright infringement if they are directly concerned in the repetition of protected material. For example, if an ISP makes offered ill-gotten copies of latest songs on its web site it would be guilty of copyright infringement. However it is not truthful to hold ISP liable for the actions of a subscriber who shares ill-gotten copies of songs over Internet without ISP having any knowledge of these infringing actions of the subscriber.
One of the main reasons behind involving ISPs in the method and holding them liable is a definite result of typical contracts that they enter into with their customers, ISPs are authorized to shut down websites as well as e-mail addresses in case of infringement. In order to take requisite action(s) they also have facilitated stern lines for news abuse.[37] In United Kingdom, beneath the information Protection Act, the ISPs are prevented from revealing the names of subscribers without their permission or an associate order from the court to a third party. Wherefore, in the event of a copyright infringement, a copyright owner cannot determine anything pertaining to the address or location of the wrong doer. In order to directly sue the wrongdoer, the copyright owner has to force ISP to disclose the offender’s name.[38] Some believe that turning to ISPs is associate, economic as well as a productive means to deal with copyright infringers or even different e-infringers in general, particularly in locating the culprits.[39] The web permits users to remain anonymous and consequently, it has become impossible to zero in on the perpetrators, thus many are in favor of holding ISPs liable for the copyright infringements by their subscribers.
Moreover, the cost of proceedings way outweighs what is recovered in the end and holding an individual liable will fetch you the same outcome for an ISP shall pay more damages. However it is absurd to hold ISP liable for the actions of its user merely as a result of ISP has deeper pockets than the individual. Another argument in favor of holding ISPs liable was due to the nature of electronic transmission of information; if a subscriber uploads infringing copyright material his ISP would have reproduced it on its laptop servers and thereby be primarily liable for copyright infringement. But, this argument might not hold still for long, as mentioned earlier in this paper, the courts set that temporary electronic copies are excluded from the definition of ‘copies’. ISPs take unit vehement in their refusal to take blame for infringing action by the subscribers. They purpose out that ISPs are mere conduits of data and are no different than a ancient post workplace that is not liable for a calumniator(s) letter that is announce through it or a phone company that is not accountable for any obscene decision created by a user. Thus, liability of ISPs ought to conjointly be restricted. They conjointly argue that imposing liability on ISPs would in flip mean barricading the potential growth of web.
ISP liability for the actions of the subscribers is based on their data of the activities of subscribers. Where, the ISP is unaware of the subscriber’s activities, the courts are reluctant to hold ISP liable, however in cases wherever the concerned ISP is aware of the subscriber’s copyright infringement or wherever ISP should have well-known the activities of subscriber’s, it is highly attainable that the courts would hold ISP liable for copyright infringement by the subscribers.[40] At present, several national governments are of the read that ISPs ought to escape liability for infringements by the subscribers of that they are unaware of, but they have a duty to take away such content once such action is brought to their notice.[41] There are varied reasons as to why it is not feasible in apply for ISPs to be accountable for cases of copyright infringement. Taking note of the immense range of transactions that take place through ISPs, it is not sensible to expect ISPs to monitor the content that passes through their systems. It is not possible and valuable for ISPs to police the content of the websites used by millions. Moreover, the instant nature of the transactions conjointly create it difficult to choose the content or even to edit it or merely keep a watch over it. As per William Foster, ‘ISPs are similar to common carriers in that they have no control over that members of the public use their facilities, or the content, members of the public choose to transmit.’ so, requiring ISPs to monitor transactions in order to trace copyright violations would violate the rights of the subscribers and it would conjointly amendment ISP business model. The latest argument is that ISPs ought to be liable for direct copyright infringement in cases wherever they interfere with the automatic information flow and conduct a human screening method of objects announce to the websites they host. However what has to be taken note of is that inspite of human screening, it is humanly impossible to be hundred percent correct as to there is no infringement of copyright at all. The terribly truth that ISP has concerned a person to check for violations in addition to the terms and conditions is smart enough proof that ISP is doing its best to forestall subscribers from copyright infringement. In such a case, it is morally wrong to hold ISPs liable for the actions of the subscribers. however there are differing views on this point.[42]
Position of the USA
Pre-DMCA situation
Prior to the Digital Millennium Copyright Act (DMCA) once the liability of ISPs came up before the courts, there was nothing however the copyright law to rely on. Thus, some courts relied on strict liability while others control ISPs to be not liable at all. However, in 1996, theCongress passed the Communications Decency Act providing immunity to ISPs.
The Communications Decency Act, 1996
In 1996, the Communications Decency Act was enacted in the United States and Section 230 of the Act states that ‘no supplier or user of associate interactive computer service shall be treated as the publisher or speaker of any data provided by another information content provider.’ Thus, it gives immunity to interactive service providers from liability beneath state intellectual property laws.[43] As a result of this provision, holding ISPs liable for deciding to publish, withdraw or alter content is not possible.19 Similar to DMCA provisions that shield ISPs in case of third party copyright infringement, this provision was conjointly brought in as a result of holding ISPs liable for communications of others would adversely affect free speech and it would be unfair to hold ISPs liable for those actions. Moreover, as mentioned earlier in this paper, it is not possible to monitor the problematic content by ISPs.
In Chicago Lawyers’ Committee for Civil Rights beneath the Law Inc v Craigslist INC;[44]
The Hon’ble Court adjudged that the immunity provided to ISPs beneath Section 230(1) of the Communications Decency Act, extends to claims, seeking to hold associate ISP liable as a publisher for content authored by third parties, and not to all claims arising out of the ISP’s role in giving public access to such content. Thus, it will be seen that the immunity given to ISPs has limitations and ISPs will not escape from its liability in all circumstances.
Playboy Enterprises INC v Frena[45]
This was one of the initial cases wherever liability of ISPs for the copyright infringement of subscribers was examined.The defendant, George Frena, operated a Bulletin Board Service (BBS) for those who purchased bound product from the suspect and anyone who paid a fee might log on and browse through totally different BBS directories to look at the pictures and they might conjointly transfer copies of the photographs. Among several images that the defendant created offered to his customers, one hundred and seventy were unauthorized proprietary photographs that belonged to the litigant. The Court noted that the intent of the BBS operator was irrelevant and applied strict liability principle of the Copyright Act. The BBS operator was liable for direct infringement as a result of the defendant’s system itself equipped unauthorized copies of proprietary work and created them offered to the public. It was irrelevant that the suspect did not create infringing copies itself. However, with time the Court’s ruling was widely debated and discredited.
Religious Technology Center v Netcom[46]
Few years later, came the Netcom case. The plaintiffs, Religious Technology Center (RTC) control copyrights in the unpublished and revealed works of L Ron Hubbard, the founder of the Church of Scientology. The suspect, Erlich was a former minister of religion who had later on become a vocal critic of the Church. On associate on-line forum for discussion and criticism of religion, Erlich announce portions of the works of L Ron Hubbard. Erlich gained his access to the web through BBS that was not directly joined to web, however was connected through Netcom On-Line Communications INC. After failing to win over Erlich to stop his postings, RTC contacted BBS and Netcom. The owner of BBS demanded the litigant to prove that they owned the copyrights of the works announce by Erlich therefore that he would be unbroken off the BBS. The plaintiffs refused BBS owner’s request as unreasonable. Netcom similarly refused plaintiffs’ request that Erlich not be allowed to gain access to web through its system. Netcom contended that it would be not possible to prescreen Erlich’s postings and that to forestall Erlich from victimization the web meant doing the same to hundreds of users of BBS. Consequently, plaintiffs sued BBS and Netcom in their suit against Erlich for copyright infringement on the web. The Court reasoned that eventhough ‘copyright is a strict liability statute, there ought to be some part of volition or causing that is lacking wherever a defendant’s system is simply used to produce a copy by third party.’ The Court additional noted that, when the subscriber is directly liable it is senseless to hold different parties (whose involvement is simply providing Internet facilities) liable for actions of the subscriber. The Court conjointly noted that the notice of infringing activity of service supplier can implicate him for contributory negligence as failure to forestall associate infringing copy from being distributed would constitute substantial participation.
Substantial participation is wherever the suspect has data of primary infringer’s infringing activities and induces, causes or materially contributes to the infringing conduct of primary infringer. The Court rejected the argument of the suspect that associate ISP is similar to a common carrier and so entitled to exemption from strict liability written in Section III of the Copyright Act and declared that carriers are not sure to carry all the traffic that passes through them. Nevertheless, the Court did not impose direct infringement liability on ISP as that would result in liability for every single server transmitting information to each different laptop.
Sega Enterprises Ltd v Maphia[47]
In this specific case, the BBS Operator wittingly created his BBS to enable users to transfer the plaintiff’s proprietary video game package therefore that users might transfer and use the package uploaded by different users for free. The Court noted that simply because the suspect is not liable for direct infringement, however, will not mean that he is free from liability. Although, the Copyright Act will not expressly impose liability on anyone different than direct infringers, courts have long recognized that in bound circumstances, liability for conducive infringement will be obligatory. The Court discovered that conducive copyright infringement stems from the notion that one who directly contributes to another’s infringement should be control liable. Such liability is established where the defendant, ‘with the knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another.’ Thus the Court took note of the data of BBS operator and his material contribution in the copyright infringement by subscribers and control BBS operator contributory liable.
Three years once the Netcom case, the DMCA was brought in. The on-line Copyright Infringement Liability Limitation Act11 was conjointly enacted as half of the Digital Millennium Copyright Act of 1998. However, the DMCA was associate update of the general law governing copyright, viz, the Copyright Act, 1976, that restricted the potential liability of ISPs regarding bound activities, and subject to their complying with bound conditions however did not exempt ISPs from liability.[48] In addition to limiting the liability of ISPs in bound instances, the DMCA conjointly lays down wherever ISPs will be control liable for infringement of copyright by their subscribers. The DMCA permits ISPs to avoid each copyright liability and liability to subscribers by adhering to certain tips set out in this that are legendary as ‘safe harbours’. Through these safe harbor provisions, DMCA limits ISP liability to four categories, viz., firstly, temporary digital network communications, secondly, system caching, thirdly, information residing on systems at the direction of subscribers; and fourth, data location tools. The DMCA accepts the ruling of the Netcom case and provides categorical protection to ISPs, hence, as long as the information is mechanically transmitted through the server and the ISP is not concerned in sterilization the content, the ISP can not be liable for mere transmission of infringing information through its server. The DMCA conjointly exempts ISPs from direct liability for reception or temporary storage of fabric in their networks if bound measures are taken by ISPs. The DMCA in Section 512(i)(1) states that the limitation of liability of the ISP beneath this Section is provided only if such ISP:
‘(A) has adopted and fairly enforced, and informs subscribers and account holders of the service provider's system or network of, a policy that provides the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network WHO are repeat infringers; and
(B) accommodates and doesn't interfere with standard technical measures.’
Thus, firstly, ISPs have to follow a policy wherever it terminates access to subscribers who are repeat offenders;[49] second, they have to place in place technical measures to forestall infringements.[50] There are further needs in the individual sections of the activities protected.3 The DMCA has a system of ‘notice and take down’ under that once associate ISP receives a notification from a right-holder informing it that a breach of copyright had been committed through its system, the ISP is obliged to take account of that data and to act to prohibit all access to the offensive data through its system. The ISP is place beneath pressure of either proscribing access to user at the risk of being sued for breachof contract in case of false notification or for being sued by the alleged copyright owner for not taking action once advised of a copyright violation by the user of ISP. however if ISP follows the statutory procedure in such a scenario, he is protected by the law. therefore in such a scenario, the ISP will repost the material taken down if the user files a counter notice stating that his posting of material will not infringe anyone’s copyright. However this will be done solely if the copyright owner has not filed associate infringement action seeking a preparation order against the user.[51]
Analysis of DMCA
Initially, USA was to adopt a procedure wherever ISPs were to be liable for the content that was transmitted and as transmission was regarded to be equivalent to reproduction. However later on in 1996 they adopted a policy that provided that ISPs are not liable for content that they unwittingly transmit. However, ISPs would be control accountable for taking down content that copyright holders will show to violate their copyright rights. This puts the burden of monitoring the content on the house owners of intellectual property and not on the ISPs. It is associate attention-grabbing solution that will be adopted by national governments in dealing with copyright infringement problems on the Internet.
What is to be noted is that USA Congress has not granted general immunity to the ISPs through DMCA, but it has restricted the liability of the ISPs based mostly on their data and involvement of the infringing activity.[52] The ISPs square measure willing to adhere to DMCA provisions, and request refuge in the safe harbors therefore that they square measure warranted of non-liability.[53] This system of limiting the responsibility of ISPs has enabled USA to produce associate evenhanded balance among the interests of all parties involved.[54] Thus, ISPs do not escape liability at all prices and copyright holders conjointly cannot harass ISPs where the sole responsibility for infringing action is on a subscriber.
Post DMCA
Costar v Loopnet [55]
Costar, a copyright owner of numerous photographs of business real estate brought a suit of copyright infringement against Loopnet Iraqi National Congress, an ISP, for direct infringement because Costar’s copyrighted pictures were denote by Loopnet’s subscribers on Loopnet’s web site. If a subscriber includes a photograph for a real estate listing, he must fill out a type and agree to the ‘terms and conditions’, along with associate degree further specific warrantee that thesubscriber has ‘all necessary rights and authorizations’ from the copyright owner of the photographs. The subscriber then uploads the photographs into a folder in Loopnet’s system, and the photograph is transferred to RAM of one of the Loopnet’s computers for review. Then a Loopnet employee quickly reviews the photograph first off to determine whether or not the photograph in truth depicts commercial real estate, and second to establish any obvious proof, such as, a text message or copyright notice, that the photograph might have been copyrighted by another. If the photograph fails either one of these criteria, the worker deletes the photograph and notifies the subscriber. Otherwise, the employee clicks associate degree ‘accept’ button that prompts Loopnet’s system to associate the photograph with the web page for the property listing, creating the photograph out there for viewing.
The Court adjudged that direct liability attaches solely when there is some conduct that causes the infringement. The Court took note of the truth that the infringing activity is initiated by the subscriber and therefore he is the direct infringer. The majority control that associate ISP ought to not be liable as a direct infringer when its facility is used to infringe a copyright however when it engaged in no intervening conduct.[56] With regard to Loopnet’s gate keeping apply, the Court observed that ‘the employee’s look is therefore casual as to be insignificant’. The Costar call additionally created it clear that DMCA will not limit ISPs to the safe harbour provisions statute in the statute. Rather, ISPs might believe on either DMCA safe harbor provisions, unwritten defences or each.[57]
Intermediary liability in Nigeria, Kenya, South Africa and Uganda.
Issues relating to intermediary liability vary among the countries in the study but there are many common issues among the countries including the limitations on liability, the role of intermediaries with regards to terrorism and violence, hate speech, cybercrime, copyright infringement, digital piracy, and obligations to assist with lawful interception of communications.
Other than in South Africa policy debates around intermediary liability are relatively new. Limitations on liability were legislated in South Africa in the Electronic Communications and Transaction Act (25 of 2002)[58], almost five years before they were first contemplated in Kenya[59] and almost ten years before they were legislated in Uganda[60]. This is perhaps due to the relatively higher internet penetration in South Africa in the 1990s and 2000s – it had one of the highest rates of internet penetration in Africa and ranked higher than other countries with similar levels of economic development[61]. The absence of mention of intermediary liability in legislation in Kenya, Nigeria and Uganda is perhaps explained by the lower levels of internet access in these countries in the 1990s and 2000s. Now other African countries have overtaken South Africa, which is reported by some studies to have lower levels of internet penetration than Nigeria, Kenya and Uganda. As all countries have in recent years experienced increased internet access, increased bandwidth and increased access through mobile phones, intermediary liability has emerged in legislative and policy debates.
Nonetheless issues concerning intermediary liability are neither new nor have they arisen out of a vacuum they have been discussed earlier in issue-based contexts using different terminology. In Nigeria the role of cybercafes with regards to cybercrime was discussed in the mid-2000s. As mobile internet access has increased and relative rates of access from cybercafes have decreased the discussion has now moved center around mobile phone operators. In Kenya, after the election violence following the 2007 elections, an ongoing debate about the role of communications intermediaries with regards to hate speech along with their role in peacebuilding began. The debate initially focused on the role of mobile operators and particularly focused on SMS/text messages. The debate continues as Kenya streamlines the writ and interpretation of its legal system to accord with its new constitution. Debate around the role of intermediaries in hate speech and in political messaging has regained momentum as the Kenyan General election approaches on the 4th of March 2013.
The Indian Perspective (Position)
India is bit by bit developing its data technology market and the variety of web subscribers is increasing everyday. On with this development, there is would like to have higher and a lot of comprehensive laws to tackle the problems that might arise in close to future. The Copyright Act, 1957 will not deal with the liability of the ISPs at all. However, the liability of ISPs finds mention in Section seventy-nine of the Information Technology Act, 2000 (IT Act) as follows:
‘Network service providers not to be liable in certain cases- For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he ad exercised all due diligence to prevent the commission of such offence or contravention.
Explanation.-For the purposes of this Section, - (a) ‘network service provider’ means an intermediary;
(b) ‘Third party information’ means any information dealt with by a network service provider in his capacity as an intermediary’[62]
Section seventy nine of the IT Act exempts ISPs from liability for third party info or knowledge created available by him if the ISP had no data of the offence committed or if the ISP had exercised ‘all due diligence’ to stop any infringement. This in flip means that unless the case in hand falls below these two exemptions ISPs are liable for copyright infringements as well as any different violations that take place in their websites, even if the act is done by the subscribers. Section seventy nine is very loosely worded and there is a risk that these exceptions mentioned in the IT Act will be used additional as a tool of harassment of firms by the authorities.[63] The Section exempts ISPs from liability if the ISP has exercised ‘all due diligence’. What is all due diligence? It ought to have been worded clearer since the manner in completely different ISPs perceive ‘all due diligence’ can be completely different and one will perpetually say that disregarding of the measures taken by ISPs that it is not ‘all due diligence’. The clarification to Section seventy nine conjointly has the risk to be loosely interpreted and thereby making almost any intermediary a ‘network service provider’. A better definition ought to have been given to the term ‘network service provider’. One will presumably argue that this broad definition permits several completely different sorts of service suppliers to be enclosed, however at the same time there is conjointly the risk of it being understood in a manner broader than what was contemplated by the framers. According to some legal specialists on Indian law, caching amounts to reproduction and such unauthorized copy would be equal to infringement. Since caching is done by ISPs themselves, ISPs could notice it troublesome to plead ignorance. ISPs would sure be liable if the owner of the copyright informs ISP regarding such infringement and no action is taken by the ISP. As in any different jurisdiction the truthfulness of the copyright owner’s claim is Associate in Nursing issue in Republic of India as well. whereas Section seventy nine of the IT Act, 2000 liberates ISPs of its liability if it will prove its cognitive content and due diligence, it will not specify who would be held liable for such contravention in such Associate in Nursing event. Therefore, this provision can cause issues once Associate in Nursing offence regarding third party info or provision of knowledge is committed.[64] therefore it will be ascertained that the existing legal provisions do not clearly visit the extent of the ISP’s liability in cases of copyright infringement by the subscribers.[65]
The liability of ISPs can arise in a number of cases by application of different statutes. This can be criminal or civil in nature depending on various factors. However, it is impractical to find out the liability if ISPs which could arise in various forms at one place. Equally impractical could be to amend all our laws which could hold ISPs liable, in order to limit their liability.[66] The later has not been attempted in any Indian Legislation including Copyright Act, 1957 till date. Therefore, by Information Technology Act, 2000 the attempt is to supply a mechanism which works as a filter for all such ISPs for the purpose of determining their liability. To clarify, we take an illustration, if an ISP is accused of illegally distributing pirated copies of music or videos then his liability be first determined under Section 51(a)(ii) and Section 63 of the Copyright Act, 1957. If he is found liable then his liability would be tested on the touchstone of Section 79 of the Information Technology Act, 2000. Under the Information Technology Act, 2000 itself ISPs can qualify exemptions under two grounds i.e. Lack of Knowledge and Exercise of Due Diligence.[67] These exemptions work as Safe Harbor for these intermediaries. Nonetheless, the extents of the safe harbors allowed under the Act are limited. [68]
There can be potentially three types of liability on an intermediary which can be imposed, it include, (1) direct; (2) vicarious; and (3) contributory liability which might be civil or criminal in nature.[69] Existing liability schemes generally join traditional fault-based liability and strict liability rules with broad Internet-specific liability exemptions.
The amendment S. 72(2) protects the identity of subscribers to the services of an intermediary. Under this the intermediary should (i) gain access to any material or other information relating to a subscriber who avails his services; (ii) discloses such information or material to any other person; (iii) without the consent of such subscriber; and (iv) with intent to cause injury to him.[70] In case of breach of confidentiality and privacy the liability by way of compensation under the draft is not exceeding Rs 25 lakhs.
Religious Technology Centre v. Netcom Online Communications Services Inc[71]
The court observed that lack of knowledge or intent was often emphasized by the ISPs. The Court has found out in many judgments that a lack of intention to infringe is not a defense in copyright actions. In this case the judge expressly rejected the allegations that the ISP has infringed directly and refused to follow Playboy Enterprises v. Frena, on the ground that Netcom could only be guilty of direct infringement if it has caused the infringing copies to be made:
“...the mere fact that Netcom's system incidentally makes temporary copies of plaintiff works does not mean Netcom has caused the copying.”
The Singapore Electronic Transactions Act, 1998 under Section 10 gives various liabilities of network service providers. Under Section 10(3) of the Act it does not grant immunity for hosting
third party resources, because such hosting would be automatic and temporary storage of those resources. It recognizes some kind of immunity from liability for the content the ISP carries if national ambitions for e-commerce are to be achieved. In similar fashion German Multimedia Law 1998 Article 5[72] gives responsibilities which need to consider by the Service Providers on Cyberspace. There is certainly extensive requirement of such legislations in India which can govern the jurisdictional aspects and extensive immunities for ISP's and other internet intermediaries extending to copyright infringement and criminal law as well as to civil actions for torts such as defamation.
Google Inc v. Louis Vuitton Malletier[73]
It was observed that the Commission's first report on the application of Directive 2000/31 shows by stating:-
'...the Commission will, in accordance with Article 21 [of Directive 2000/31], continue to monitor and rigorously analyse any new developments, including national legislation, case-law and administrative practices related to intermediary liability and will examine any future need to adapt the present framework in the light of these developments, for instance the need of additional limitations on liability for other activities such as the provision of hyperlinks and search engines'.
Hence from the above explanation we observe that considerable variations in laws relating to: (a) intermediary liability; (b) safe harbour regimes; (c) notification regimes must be seen in future since its the need of the hour. There are too many uncertainties in application of intermediary liability law in all jurisdictions which must be resolved through amendments. We must have a detailed compliance regime for intermediary liability and jurisdictional disputes. For all above said suggestions we require to maintain litheness to counter to changes in technology & not be controlled by exhaustive and detailed Treaty responsibility.[74]
Need for higher legislation on ISP liability India has a long approach to go in delivery of a comprehensive legislation on the liability of ISPs in cases of copyright infringement in digital context. It is of utmost importance for a country such as Republic of India with an increasing range of net users Associate in Nursing thereby increasing the threat to infringing the rights of copyright holders. At the same time, Republic of India is apace becoming digitalized and if new laws are not brought in to defend ISPs from copyright infringement by subscribers and the connected aspects, it would adversely affect the ISP business as a whole although cases regarding the same are nevertheless to come back before any court of law in Republic of India. Moreover, it is conjointly necessary for India to update their laws concerning this facet to remain in competition with different Asian countries such as Singapore that have come back up with comprehensive laws limiting the liability of ISPs. Some argue that taking note of the borderless nature of the net, all nations ought to develop a set of rules for ISPs that are universally applicable. Given the variations in the systems, different countries can come back up with completely different approaches regarding the liability of ISPs and consequently ISPs operating in multiple countries can face completely different liabilities in completely different countries. Another facet is that there can be clash of varied domestic laws on ISPs where Associate in Nursing ISP is operational a internet hosting web site in one country and wherever it has allegedly committed copyright violations in another country wherever the web site has been accessed.[75] Thus, a universal set of rules to be made applicable in the context of the net is being suggested.
Some Recommendations in pertinence to the Intermediary Liabilities.
Double mind perspective when screening content.
The unnerving effect can primarily be ascribed to the requirement for private intermediaries to achieve subjective judicial determination in the course of ordering the takedown. From the retorts to the takedown notices, it is outward that not all intermediaries have sufficient legal fitness or resources to unhurried on the legality of an countenance, as a effect of which, such intermediaries have a predisposition to err on the side of caution and chill lawful expressions in order to edge their liability. Even if such intermediary has ample legal competence, it has a tendency to prioritize the allocation of its legal resources according to the professed importance of assailed expressions. Further, if such subjective fortitude is required to be done in a controlled timeframe and in the want of adequate facts and contexts, the intermediaries have no choice but to mechanically (without application of mind or proper judgment) comply with the takedown notification.
Outlook to the aforementioned issue:-
It is hereby suggested that the need for private intermediaries to subjectively verify the lawfulness of associate expression gets replaced with associate objective test. Such associate objective check is introduced by dynamic the data requirement. for instance, for the ‘hosting’ category of intermediaries, the target check ought to be to work out “whether or not the third party supplier of data is willing to defend his expression in court”. By legal fiction, Actual data is attributed to the intermediator given that the third party supplier of data refuses to defend his expression or fails to reply with a counter notice among the notice point.
Problem in understanding and or interpreting the criterion laid down in the concerned statute.
The content policy (criteria for administering the takedown) uses terms that are not outlined to explain prohibited expressions. The responses of the takedown notices demonstrate that multiple interpretations of identical term can create uncertainty and thus a chilling impact - as it induces the negotiator to adopt the broadest attainable interpretation of the term and to err on the aspect of caution.
Outlook to the aforementioned issue:-
It is suggested that every single terminology used in the content policy (criteria for administering the takedown) be clearly outlined or be replaced with a statement that prohibits all expressions and would be unlike “violate any law for the nowadays in force” so that only specific legislatively barred expressions, within the scope of ‘cheap/adult’ restrictions as pictured within the Constitution of India, will be taken down and used.
Conclusion
There seems to be a world movement towards adopting a “notice and take-down” policy (the EU regime, the Digital Millennium Act, etc.). Such a regime passes the prices of judgment on to personal parties (who successively square measure possible to pass them on to users) and will additionally inhibit free speech. The shortage of judicial oversight will be a problematic issue, particularly within the case of tiny businesses or short-run censorship.
The Indian law at first took a step forward with the passing of the IT modification Act in 2009 however with the introduction of the go-between tips, the safe harbor provided by Section seventy nine of the Act has been worn therefore on be much non- existent. The Asian country position at the instant looks unreasonable particularly the maximum amount of the content accessed in India is formed abroad, which implies Indian intermediaries can bear the forcefulness of any liability claims.
The issue of a way to wear down intermediary liability is thus one that there's no straitjacket answer. However, I think that any palm system should be designed on the subsequent principles that square measure additional compatible with the improvement of the inter-internet as a medium of communication:
Self-regulation by intermediaries appears to guide to suboptimal social control of the law and promotes whimsicality and reduces transparency by promoting private action during a public sphere.
The law must differentiate between intermediaries on the premise of practicality and will offer immunity wherever the go-between wasn't during a position to regulate or assess the offence (practically or in law).
The law should differentiate between varied crimes on the premise of harshness and maltreatment and wear down every class appropriately (and probably through changes in alternative relevant statutes like the Copyright Act, Indian legal code, etc). For in- stance, within the case of threats to national security, commission of knowable offences, etc, a notice and takedown regime ought to be acceptable. This might change such claims to be proscribed efficiently and stop harm. Even within the event executive action is found necessary in extreme cases (say involving terror threats), there should be judicial consciousness of the action inside such a time, failing that the makes an attempt to censor should stop. Just in case of copyright, defamation and obscenity- connected claims, there's no reason for a different commonplace to be applied compared to ancient ways of dissemination of data. It might thus be appropriate if any complaints received square measure place through a judicial method before censor- ship. In any event, damages in such scenario square measure possible to be financial and per se any tiny delay occasioned by having to require the touch on court wouldn't unduly hurt the parties concerned (especially as courts square measure sceptered to grant injunctive relief). Such a system would additionally cut back false claims, and guarantee intermediaries square measure safe from having to create powerful decisions regarding matters they can't be expected to possess experience in.
Provision of data concerning in- stances of censorship could be a must and therefore judicial and government authorities square measure best suited to adjudicate on instances wherever censorship is needed. Inserting the concern of policing the web on nonpublic intermediaries is clearly impractical and in- economical within the end of the day.
Simply obstructing content is associate impractical and unreal methodology to bind net crimes.
[1] Bailey, J. P., & Bakos, J. Y. (1997). An Exploratory Study of the Emerging Role of Electronic Intermediariations and Policy, 19(5), 406-417.
[2] Kingma, B. R. (2001). The economics of information: A guide to economic and cost-benefit analysis for information professionals (2nd ed.). Englewood, CO: Libraries Unlimited.
[3] Wolpert, S. A., & Wolpert, J. F. (1986). Economics of information. New York: Van Nostrand Reinhold.
[4] Beniger, J. R. (1986). The control revolution: Technological and economic origins of the information society. Cambridge, Mass.: Harvard University Press.
[5] Shapiro, C., & Varian, H. R. (1998). Information rules: A strategic guide to the network economy. Boston, Mass.: Harvard Business School Press.
[6] Larson, E. (1992). The naked consumer: How our private lives become public commodities (1st ed.). New York: H. Holt.
[7] Larson, E. (1992). The naked consumer: How our private lives become public commodities (1st ed.). New York: H. Holt.
[8] Cavoukian, A., & Tapscott, D. (1997). Who knows: Safeguarding your privacy in a networked world. New York: McGraw-Hill.
[9] Rose, F. (1999). The economics, concept, and design of information intermediaries: A theoretic approach. New York: Physica-Verlag.
[11] Rose, F. (1999). The economics, concept, and design of information intermediaries: A theoretic approach. New York: Physica-Verlag.
[12] Hirshleifer, J. (1973). Where are we in the theory of information? The American Economic Review, Vol. 63 (No. 2, Papers and Proceedings of the Eighty-Fifth Annual Meeting of the American Economic Association), 31-39.
[13] Kingma, B. R. (2001). The economics of information: A guide to economic and cost-benefit analysis for information professionals (2nd ed.). Englewood, CO: Libraries Unlimited.
[14] ibid
[15] Rose, F. (1999). The economics, concept, and design of information intermediaries: A theoretic approach. New York: Physica-Verlag.
[16] Sampler, J. L. (1998). Redefining industry structure for the information age. Strategic Management Journal, Vol. 19 (No. 4, Special Issue: Editor's Choice), 343-355.
[17] ibid
[18] Shapiro, C., & Varian, H. R. (1998). Information rules: A strategic guide to the network economy. Boston, Mass.: Harvard Business School Press.
[19] ibid
[20] Evans, P., & Wurster, T. S. (2000). Blown to bits: How the new economics of information transforms strategy. Boston, Mass.: Harvard Business School Press.
[21] Kingma, B. R. (2001). The economics of information: A guide to economic and cost-benefit analysis for information professionals (2nd ed.). Englewood, CO: Libraries Unlimited.
[22] ibid
[23] Rose, F. (1999). The economics, concept, and design of information intermediaries: A theoretic approach. New York: Physica-Verlag.
[24] Rose, F. (1999). The economics, concept, and design of information intermediaries: A theoretic approach. New York: Physica-Verlag.
[25] Boisot, M. (1998). Knowledge assets: Securing competitive advantage in the information economy. New York: Oxford University Press.
[26] ibid
[27] ^ Pay Without Performance by Lucian Bebchuk and Jesse Fried, Harvard University Press 2004
[28] nvestopedia explains ‘Agency Costs’
[29] Cheung, Steven N. S. (1987). Economic organization and transaction costs. The New Palgrave: A Dictionary of Economics v.2 p 55-58
[30] Commons, J.R (1931). “Institutional Economics”. American Economic Review 21: 648–657. Retrieved February 8, 2013.
[31] 17 USC Section 512(k)(1)(A), http://www4.law.cornell.edu/ uscode/html/uscode17/usc_sec_17_00000512-- --000-.html (17 May 2007).
[32] 17 USC Section 512(k)(1)(B), http://www4.law.cornell.edu/ uscode/html/uscode17/usc_sec_17_00000512----000-.html (17 May 2007).
[33] Joseph B G & Wasylik D P, Copyright issues on the Internet and the DMCA, Practicing Law Institute-Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series, 2003, 451.
[34] Section 512(d) of the Digital Millennium Copyright Act (DMCA).
[35] Cooper R, Media law, music copyright, ISP’s liability for file sharing, http://ezinearticles.com/?Media-Law---Music- Copyright---ISP%E2%80%99s-Liability-for-File-Sharing&id =360608 (9 May 2007).
[36] Wei W, The liability of Internet Service Providers for copyright infringement and defamation actions in the United Kingdom and China: A comparative study, European Intellectual Property Review, 28 (10) (2006) 528.
[37] Osborne D, Copyright and trademark infringement on the net – Looking to the Internet Service Provider first, http://www.iprights.com/cms/templates/articles.aspx?articlei d=146&zoneid=2 (9 May 2007).
[38] Cooper R, Media law, music copyright, ISP’s liability for file sharing, http://ezinearticles.com/?Media-Law---Music- Copyright---ISP%E2%80%99s-Liability-for-File-Sharing&id =360608 (9 May 2007).
[39] Osborne D, Copyright and trademark infringement on the net – Looking to the Internet Service Provider first, http://www.iprights.com/cms/templates/articles.aspx?articlei d=146&zoneid=2 (9 May 2007).
[40] Unni V K, Internet Service Provider’s liability for copyright infringement- How to clear the misty Indian perspective, Richmond Journal of Law and Technology, 8 (2001) 13. ISP liability, http://www.bitlaw.com/internet/isp.html (9 May 2007).
[41] Osborne D, Copyright and trademark infringement on the net – Looking to the Internet Service Provider first, http://www.iprights.com/cms/templates/articles.aspx?articlei d=146&zoneid=2 (9 May 2007).
[42] Costar v Loopnet, 373 F 3D 544 (4th CIR 2004).
[43] CDA Section 230, Immunity covers state intellectual property-related, right of publicity claims, http://brownraysman.typepad.com/technology_law_update/2 007/04/cda_section_230.html#more (24 May 2007).
[44]Chicago Lawyers’ Committee for Civil Rights Under The Law Inc v Craigslist Inc, Case No. 06 C 0657 (NDIll, 14 November 2006) in Online Defamation/Libel/ Communications Decency Act-Internet library of law and court decisions, http://www.internetlibrary.com/topics/online_defamation.cfm (24 May 2007).
[45] Playboy Enterprises Inc v Frena, 839 F Supp 1552 (M D Fla 1993).
[46] Religious Technology Center v Netcom, 907 F Supp 1361 (N D Cal 1995), http://www.tomwbell.com/NetLaw/Ch07/ Religious-C.html (17 May 2007).
[47] Sega Enterprises Ltd v Maphia, 948 F Supp 923, 932 (N D Cal 1996), http://www.tomwbell.com/NetLaw/Ch07/ Sega.html (17 May 2007).
[48] Final Report of the Inter-Governmental Copyright Committee, http://www.unesco.org/culture/copyright/images/ IGC1971XII9e.pdf (9 May 2007).
[49] http://www4.law.cornell.edu/uscode/ html/uscode17/usc_sec_17_00000512--000-.html (27 August 2007). USC 512(i)(1)(A),
[50] http://www4.law.cornell.edu/uscode/ html/uscode17/usc_sec_17_00000512--000-.html (27 August 2007). http://www.murdoch.edu.au/elaw/ issues/v9n4/mercurio94. html (9 May 2007). Francisco Castro, The Digital Millennium Copyright Act: Provisions on circumventing protection systems and limiting liability of service providers, Chicago-Kent Journal of Intellectual Property, 3 (2004) 3. USC 512(i)(1)(B),
[51] http://www4.law.cornell.edu/uscode/html/ uscode17/usc_sec_17_00000512--000-.html (27 August 2007). USC 512(g),
[52] http://www.legalservicesindia.com/articles/ isp_in_us.htm (9 May 2007).
[53] http://www.murdoch.edu.au/elaw/issues/v9n4/mercurio94.html (9 May 2007).
[54] http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000512--000-.html (27 August 2007).
[55] Costar v Loopnet, 373 F 3D 544 (4th CIR 2004).
[56] http://jip.kentlaw.edu/ art/volume%206/6%20Chi-Kent%20J%20Intell%20Prop%201.doc (9 May 2007).
[57] ibid
[58] http://www.internet.org.za/ect_act.html
[59] Safe harbour like provisions for liabilities were proposed in the Now Defunct Electronic Transactions Bill of 2007.
[60] In the Electronic Transactions Act of 20011, op cit.
[61] “South Africa” in Freedom House, Freedom on the Net 2011, http://www.freedomhouse.org/report/freedom- 
net/2012/south-africa)
[62] Section 79, IT Act (2000)
[63] http://cyberlaws.net/cyberindia/liablity.htm (15 May 2007).
[64] http://www.sudhirlaw.com/cyberlaw-itact.htm (10 May 2007).
[65] http://www.legalservicesindia.com/articles/isp_in_us.htm (9 May 2007).
[66] S.K. Verma & Raman Mittal, “Legal Dimensions of Cyberspace”, (2004, Indian Law Institute, Delhi)
[67] K. Mani's, “A Practical Approach to Cyber Laws” ̧ (2009 Edn., Kamal Publishers, Delhi)
[68] Diane Cabell, “Unlocking Economic Opportunity in the South Through Local Content Appendix A: Potential Liability Concerns for an Open Content Exchange Network”, Berkman Center for Internet & Society (January 2002), available at http://cyber.law.harvard.edu/open economies/oknliability.html#n86, Last visited on 1st March, 2010.
[69] Apar Gupta, “Liability of Intermediaries in India — From troubled waters to safe harbors”, (2007) PL May 3, www.ebc-india.com/practicallawyer, Last visited on 1st March, 2010.
[70] Proposed Amendments to the IT Act, 2000, Expert Committee on Review of the IT Act, 2000, “Report of the Expert Committee: Full Text” (Proposed 29-8-2005), available at http://www.mit.gov.in/itact2000/ITAct.doc (hereinafter proposed Amendments to the IT Act, 2000), Section 72(2).
[71] 907 F Supp 1361 (ND Cal, 1995)
[72] Trans. Christopher Kuner, www.kuner.com, Last visited on 1st March, 2010.
[73] Opinion of Advocate General Poiares Maduro, delivered on 22nd September 2009, Joined Cases C-236/08, C- 237/08 and C-238/08, www.manupatra.com, Last visited on 1st March, 2010.
[74] SSRN-id1800837; Sonia Verma, B.Sc., LL.B (Corporate Hons.), IV Year, National Law University, Jodhpur. Upvan Madhur Prakash, B.A., LL.B (Corporate Hons.), IV Year, National Law University, Jodhpur.
[75]http://www.isoc.org/inet97/proceedings/B1/B1_2.HTM (9 May 2007).
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