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material that appears questionable as regards copyright ordefamation law, without any requirement that ISPs affirmativelyestablish that such information is in fact unprotected. Such broadremoval discretion, with or without notice of alleged impropercontent or infringement, would impede the right of free speech forindividual Internet users.To rectify this problem while still applying the functionspecificprovisions of OCILLA and the E-Commerce Directive toAmerican defamation law, the notice-and-take-down requirementsoutlined in OCILLA could be softened in the defamation context.One possibility for softening OCILLA’s take-down requirementwould be requiring those claiming to be the victim of defamationto approach an ISP not with an allegation of inappropriate contenton its system, but rather with a court injunction, specifying thatthe speech is unprotected and should be removed from theInternet.203 Since the alleged victim of defamation carries theburden of proving that the other party’s speech is in fact false anddefamatory in a courtroom setting, such a showing should also beappropriate to restrict the open forum for free speech that existson the Internet. Requiring such a heightened showing to sanctionthe removal of material based on its content is consistent with theheightened freedom of speech that is guaranteed by the FirstAmendment.204 Also, since the heightened removal standardwould apply only where content was concerned, it would notimpede the privileges of copyright owners under the BerneConvention, which establishes that copyright owners shall not berequired to actively enforce their rights of ownership to retain itsprivileges.205203. Several scholars discussing the reality of a horizontal application of ISP safeharbors have endorsed the need for a court to weigh the competing interests of thevictims of defamation against those of Internet operators before resorting to automaticremoval and the resulting imposition on freedom of expression. See Lucas, supra note162, at 278; see also Dun & Bradsreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,756-61 (1985) (discussing, among other things, the need to balance the compelling stateinterest in enforcing defamation law against the First Amendment’s interest inallowing the free flow of speech in public debate, and how this balance is altered by thestatus of the victim as a public or private figure and the subject matter of the speech);Gertz v. Robert Welch, Inc., 418 U.S. 323, 345-48 (1974).204. See U.S. Const. amend I.205. See WIPO Copyright Treaties Implementation Act, and Online CopyrightLiability Limitation Act: Hearings on H.R. 2281 and 2280 Before the House Subcomm.On Courts and Intellectual Property of the Comm. on the Judiciary, 105th Cong. 58(1997).
CONCLUSIONThe Internet has continually expanded over the past decade,becoming an invaluable medium for communication on a globallevel.206 To efficiently enforce defamation and copyright lawonline, the liability of both individuals and Internet providersmust be easily determined and to some degree predictable. Itshould also be reflective of the roles that individual users andInternet service providers actually play in the digital world.Sometimes ISPs exercise no control over material that they sendvia the Internet, and act only as a conduit. In other instances, therole of the ISP is much more involved, and its knowledge of thecontent it produces is arguably greater. The blanket immunitythat the CDA offers Internet providers allows ISPs to act aspublishers and distributors of online content without facingliability for this role. This provision is outmoded. Defamation lawcan be better enforced on the Internet by employing a unified setof specific safe harbor provisions for ISPs that relate to thedifferent aspects of their online activities. Such a unified,horizontal approach to ISP liability is being constructed effectivelyin Europe.207 OCILLA’s negotiated provisions limiting ISPliability in the copyright context accurately address the role of anISP in transmitting information, and can be adequately modifiedfor application in a defamation context without improperlychilling free speech online. Such a unified standard will bettermeet the needs of users, providers, and defamation law in theUnited States.Lucy H. Holmes206. See Jane C. Ginsburg, Putting Cars on the “Information Superhighway”:Authors, Exploiters, and Copyright in Cyberspace, 95 Colum. L. Rev. 1466, 1466 (1995).207. See Julia-Barcelo, supra note 11.
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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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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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Page 220 and 221: Other Substantive IssuesThere are,
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