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Copyright infringement vs safe harbor for hosting platforms : should we…

- - - - liability privilege if hosting provider is
        
        (1) an intermediary that stores users' content
        
        L'Oreal v. Ebay (C-324/09) : to qualify as an intermediary storing users' content, the hosting provider must not play an active role in order to give the provider knowledge or control over its user's content. The hosting provider must take a neutral position as to users' contents.
        
        Active role = the hosting provider plays an active role if optimizes the presentation of the user's content or promotes it.
        
        (2) has no actual knowledge of illegal activity
        
        (3) (to enjoy the safe harbor with respect to damage claims) hosting provider must not be aware of facts or circonstances from which illegality is apparent
        
        Awareness is created with a notice and take down letter (sent by the right holder)