Vol 7 No 1 - Roger Williams University School of Law

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).