Vol 7 No 1 - Roger Williams University School of Law

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acts of copyright infringement.7 Under the Online CopyrightInfringement Liability Limitation Act (OCILLA), Title II of theDigital Millennium Copyright Act (DMCA),8 Internet serviceproviders are protected from strict liability for third-party acts ofcopyright infringement only if they can prove that their activitiesfit into one of four general safe harbor categories: transitorynetwork communications, system caching, information stored onnetworks under user direction, and information location tools.9 Toretain this safe harbor immunity, OCILLA also requires an ISP topromptly remove any allegedly infringing materials stored on itsservice once it has been notified of their unauthorized use by acopyright holder.10In contrast to the United States, the European Union (EU) isin the process of developing a unified standard for determining theextent of ISP liability for the acts of their third-party users.11 Thenew EU E-Commerce Directive12 addresses these issues, andcreates safe harbor provisions for ISPs that are, for the mostpart,13 very similar to those enforced in the United States by theDMCA.14 The E-Commerce Directive and the DMCA differ in thescope of their liability limitations. The Directive is designed toregulate all instances of ISP liability for the acts of its third-partyusers, and applies one standard horizontally to all areas of law,15including defamation and copyright infringement. This is unlikethe vertical approach to ISP liability taken in the United States,where liability limitations for Internet providers are definedaccording to the area of law in which the offense occurs.16 While7. See Goldstein, supra note 3, at 638.8. 17 U.S.C. §§ 1201-1332 (Supp. IV 1998). Title II of the DMCA is entitled theOnline Copyright Infringement Act. See 17 U.S.C. § 512 (Supp. IV 1998).9. See 17 U.S.C. § 512(a)-(d), (f), (g), (i).10. See id.11. See Rosa Julia-Barcelo, On-Line Intermediary Liability Issues: ComparingE.U. and U.S. Legal Frameworks, 2000 E.I.P.R. 22(3) 105-19.12. See Proposal for a Directive on Certain Legal Aspects of Electronic Commercein the Internal Market, COM (98) 586 final; Directive on Certain Legal Aspects ofInformation Society Services, in Particular Electronic Commerce, in the InternalMarket, Council Directive 00/31, 2000 O.J. (L 178) [hereinafter EU E-CommerceDirective].13. The EU E-Commerce Directive does not include a safe harbor for informationlocation tools, which is present in the DMCA. See id.; see also Julia-Barcelo, supra note11, at 114.14. See Julia-Barcelo supra note 11, at 108.15. See id.16. See id.
the safe harbor provisions limiting ISP liability for user acts ofcopyright infringement will be similar in the United States andthe EU following the adoption of the Directive,17 the safe harborprovisions limiting ISP liability for third-party content will differdramatically.18 By applying the safe harbors of the E-CommerceDirective horizontally, the EU will look to these same provisionsin determining when an ISP can face liability as the publisher ordistributor of a user’s defamatory statement.19 In the UnitedStates, an ISP holds blanket immunity from being considered thepublisher of a third-party defamatory statement under the CDA.20This paper will first discuss the development of the CDA andits requisite safe harbor provision limiting the liability of ISPs fordefamatory content on their systems posted by third parties.21 Itwill next discuss the liability of ISPs for third-party copyrightinfringement under the safe harbor provisions provided by theDMCA in OCILLA.22 It will then compare the liability limitationsof the DMCA to those included in the European Union E-Commerce Directive,23 and outline the implications of applyingthe same safe harbor limitations horizontally to include ISPliability under defamation law within the same safe harborparameters. This paper will conclude that the DMCA’s safeharbor provisions limiting ISP copyright liability for third-partyinfringement as outlined should be applied horizontally indefamation cases to determine whether an ISP can be held liableas the publisher or distributor of a third-party defamatorystatement posted on its service. Finally, this paper will considerthe First Amendment concerns arising from the required removalprovisions of the DMCA,24 and how these provisions could belimited in a defamation context so as not to improperly impede17. See generally id. (comparing the EU E-Commerce Directive to the safe harborprovisions of the DMCA and concluding that they are largely similar).18. See id. at 108.19. See id.20. See Goldstein, supra note 3, at 638.21. 47 U.S.C. § 230 (1996).22. 17 U.S.C. §§ 1201-1332 (Supp. IV 1998).23. See Council Directive 2000/31/EC 2000 O.J. (L 178); see also Julia-Barcelo,supra note 2.24. See generally Alfred C. Yen, Internet Service Provider Liability for SubscriberCopyright Infringement, Enterprise Liability, and the First Amendment, 88 Geo. L.J.1833 (2000) (discussing the First Amendment’s under-emphasized implications oncopyright law).
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Page 180 and 181: Taking UCITA on the Road: WhatLesso
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Page 184 and 185: It is against this background that
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Page 188 and 189: as well, such as the American Bar A
Page 190 and 191: American Law Institute refused to p
Page 192 and 193: enactment of the draft. This led to
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Page 210 and 211: Contracts deals with unfair terms i
Page 212 and 213: worth a thousand words. Picture a d
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Page 220 and 221: Other Substantive IssuesThere are,
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Page 230 and 231: these rights.I. ISP LIABILITY FOR T
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Page 258 and 259: FBI’s Carnivore: Is the Governmen
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Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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