Vol 7 No 1 - Roger Williams University School of Law

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any infringing material either upon notification of a rights holderor upon gaining awareness of the prohibited activity.153Information Location ToolsOCILLA also offers a similar safe harbor for ISPs that provideinformation location tools, such as search engines, that link usersto other web sites indiscriminately.154 This defense is also limitedby the intermediate knowledge standard, and includes therequired notice and take down provisions mentioned above.155To be eligible for these liability limitations, ISPs are requiredunder OCILLA to designate an agent to receive notifications ofcopyright violations of their networks156 and must implement apolicy for the termination of subscribers’ accounts who repeatedlyact in violation of copyright law.157The safe harbor provisions limiting ISP copyright liability aredirectly related to specific functions performed by Internetproviders, and protect ISPs from liability only for the innocuoustransmission, copying, hosting, or linking of third-party contentmaterials that the provider does not itself create or control. Theseliability limitations are specific, and better assess the role of theInternet provider in infringing conduct than does the blanketimmunity for content provided by the CDA. The limitingprovisions listed in OCILLA reflect the careful scrutiny ofCongressional debate and lobbying on the part of both copyrightowners and Internet service providers.As a result of this lengthy process, the safe harbors outlinedin OCILLA have served as a model for other countries to follow incodifying copyright limitations on ISP liability. OCILLA’s limitingprovisions have not, however, been restricted to defining thelimitations on copyright liability in other countries. This paperwill now address the horizontal approach to ISP liability currentlybeing implemented in the European Union. This approach appliessafe harbors almost identical to those in OCILLA to all forms ofpotential ISP liability, creating a uniform, predictable minimum153. See id.154. See id. § 512 (d).155. See id. § 512(b)(2).156. See id. § 512 (c)(2).157. See id. § 512(I)(1)(A).
standard for each of the member states to follow in enacting theirown provisions.III ISP LIABILITY UNDER THE EU E-COMMERCE DIRECTIVEThe European Union E-Commerce Directive158 outlines a listof ISP safe harbors almost identical to OCILLA’s provisionslimiting copyright liability of Internet providers for third-partyacts of infringement in the United States.159 A significantdifference in the application of these two “statutory” provisions isthe comparative breadth of the safe harbor provisions. UnlikeOCILLA’s limiting provisions, which provide safe harbors forInternet providers only under copyright law,160 the EU Directivewill apply across the board to all areas of law involving ISPs.161This creates a unified, “horizontal” approach to determining theextent of Internet provider liability in Europe, and avoids theuncertainty of having different legal standards for determiningwhen ISPs face potential liability.162The E-Commerce Directive will significantly change the lawsof countries that have not independently developed statutoryprovisions limiting ISP liability163 or have adopted them, buthave, like the United States, made the provisions particular to onearea of law.164 By employing a horizontal approach to the issue of158. See Council Directive 00/31, 2000 O.J. (L 178).159. One aspect in which the E-Commerce Directive and OCILLA’s limitingprovisions differ is the Directive’s lack of a comparable safe harbor for ISPs functioningas information location tools. Article 24 of the Directive includes a re-examinationprocedure whereby the European Commission can re-evaluate the importance ofincluding a liability limitation for ISPs providing these linking services within threeyears of the Directive’s adoption. Some scholars have hypothesized that during thistime a separate safe harbor for information location tools will be added to the Directive.See Julia-Barcelo, supra note 11, at 115; Claus Köhler & Kai Burmeister, CopyrightLiability on the Internet Today in Europe (Germany, France, Italy and the E.U.), 1999Eur. Intell. Prop. Rev. 21(10) 485-99, 499.160. See Dmitrieva, supra note 95, at 240.161. See Julia-Barcelo, supra note 11, at 108.162. See id; see also Andre Lucas, Exploitation and Liability in the Light of MediaCoverage, 2001 Eur. Intell. Prop. Rev. 23(6), 275, 275 (discussing the horizontalapproach of the EU E-Commerce Directive and relating some of its advantages anddisadvantages).163. See Köhler & Burmeister, supra note 159, at 497-98 (discussing the lack ofexisting ISP liability limitations in France and Italy).164. See, e.g., Godfrey v. Demon Internet Ltd., 1999 WL 477647, (Q.B. Mar. 26,1999) (applying the U.K. Defamation Act of 1996). This Act imposes a variety oflimited liabilities for ISPs, provided that they lack knowledge of third party contentand exercise reasonable care under the circumstances. The law does not regulate
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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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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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Page 220 and 221: Other Substantive IssuesThere are,
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Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
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