Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
provider liability, the European Commission hopes to ensurepredictability for ISPs and promote harmonization between thevarious member states who must use the Directive as a minimumstandard for enacting their own legislation. As Julia-Barcelo165argues, this approach also eliminates the need for self-monitoring:A horizontal approach is appropriate . . . because theinformation that travels through on-line intermediaryfacilities such as cables, satellites and servers is just asequence of bits, a succession of zeros and ones which isnot linked to the real meaning of the information itself.Therefore, to apply different legal standards to differentmaterial flowing over their systems, on-lineintermediaries would actually have to convert all thosezeros and ones into text, music and images, and monitorand review each piece of such information. Imposingsuch an obligation on on-line intermediaries would bringthe Internet to a halt and would threaten the privacy ofinformation moving over it.166Julia-Barcelo’s comments highlight a valid concern withvertically applied ISP liability. For the American dual-standardliability scheme to properly enforce Congress’ stated intent inpassing both Acts,167 American Internet service providers must, insome form or fashion, monitor third-party content posted to theirsystems.168 It is this self-policing privilege that Congress soughtto protect by limiting provider liability for third-party content inthe CDA.169 Congress also advanced this goal by limiting providerliability for removing any third-party material that either theprovider or other users found offensive.170 While this liabilitylimitation does enable ISPs to freely monitor and police theirsystems, it does not require any such activity on their part.171 Ascopyright liability of ISPs. See id.165. See Julia-Barcelo, supra note 11.166. Id. at 108.167. See supra. text; see also 144 Cong. Rec E160-01 (daily ed. Feb. 12, 1998)(statement of Rep. Coble); Joint Explanatory Statement of the CongressionalConference Committee, H.R. Conf. Rep. No. 104-458 (1996), reprinted in 1996U.S.C.C.A.N. 124.168. See id.169. See id.170. See supra. text; see also 47 U.S.C. § 230(c)(2)(A).171. See Joint Explanatory Statement of the Congressional Conference Committee,H.R. Conf. Rep. No. 104-458 (1996), reprinted in 1996 U.S.C.C.A.N. 124.
a result, under the current interpretation of the CDA, a providergains the benefit of complete immunity without upholding anylevel of requisite responsibility, even when actual or constructiveknowledge of the problematic content is arguable.172While still not requiring monitoring,173 OCILLA’s limitingprovisions create liability for an Internet provider where the ISPmeets one of three requirements: actual knowledge of a user’sinfringement,174 awareness of facts or circumstances from whichthe infringement is apparent, or receipt of a financial benefit fromthe user’s infringing activity.175 If any of these provisions aremet, an ISP can still avoid liability under OCILLA by promptlyremoving the questionable material upon notice of the possibleinfringement.176 The EU E-Commerce Directive applies similarsafe harbor provisions horizontally to define the level of liabilityISPs face throughout all areas of law, including defamation.177Thus, the E-Commerce Directive avoids content monitoringconcerns not by granting wholesale immunity of the kind providedby the CDA, but rather by analyzing the facts of each case todetermine whether the ISP gains liability limitation by fitting intothe listed safe harbors. Where third-party content is concerned,this evaluation will focus on the amount of editorial control theISP exercised, the level of knowledge it possessed, and thefinancial benefit it gained. This method for determining ISPliability seems more in line with the requirement in commondefamation law of determining based on the facts of the casewhether or not a person or entity acts as a publisher or distributor172. See Zeran, 129 F.3d at 330-31.173. See DMCA Report on S. 2037 of the Senate Comm. on the Judiciary, Rept.105-190, 105th Cong. (1998).174. See text supra. See also supra notes 138-52 and accompanying text.175. See id.176. See id.177. One difference in the respective safe harbors provided by OCILLA and the E-Commerce Directive is the adoption of a “notice and take down” requirement as aprerequisite for obtaining safe harbor immunity. While OCILLA statutorily requiresthat potentially infringing material be promptly removed by an ISP after notification,the E-Commerce Directive includes no such per se requirement. See P. BrentHugenholtz, Caching and Copyright: The Right of Temporary Copying, 2000 Eur.Intell. Prop. Rev. 22(10) 482, 492. However, failure to expeditiously remove infringingmaterial after notification can still result in liability if a court finds, applyingunderlying general principles of the respective country’s law, that the ISP had actualnotice of infringement on their system and failed to take reasonable steps to remedythe situation. See id.; see, e.g., Godfrey, 1999 WL 477647 (discussed at length in textinfra).
- Page 200 and 201: provisions of Article 2 (based in p
- Page 202 and 203: form license of information.63 Alth
- Page 204 and 205: principles articulated in several i
- Page 206 and 207: to by industry groups, with the res
- Page 208 and 209: powers going well beyond the UNIDRO
- Page 210 and 211: Contracts deals with unfair terms i
- Page 212 and 213: worth a thousand words. Picture a d
- Page 214 and 215: types of provisions being sought by
- Page 216 and 217: law is a complex one.125 Although s
- Page 218 and 219: the intellectual property balance o
- Page 220 and 221: Other Substantive IssuesThere are,
- Page 222 and 223: law,153 and many of UCITA’s provi
- Page 224 and 225: nature of law-making both domestica
- Page 226 and 227: Transactions Act).
- Page 228 and 229: acts of copyright infringement.7 Un
- Page 230 and 231: these rights.I. ISP LIABILITY FOR T
- Page 232 and 233: Cubby, the court in Stratton Oakmon
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- Page 236 and 237: network and removed the edition of
- Page 238 and 239: subscribers’ conversations.84 Fur
- Page 240 and 241: holder.92 Contributory liability ap
- Page 242 and 243: and Klemesrud on the counts of dire
- Page 244 and 245: eport, the White Paper on Intellect
- Page 246 and 247: imposed ISP liability both in insta
- Page 248 and 249: any infringing material either upon
- Page 252 and 253: of a defamatory statement.While saf
- Page 254 and 255: defamation.184 One case that illust
- Page 256 and 257: material that appears questionable
- Page 258 and 259: FBI’s Carnivore: Is the Governmen
- Page 260 and 261: and the legal limits of government
- Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
- Page 264 and 265: application developed in Katz v. Un
- Page 266 and 267: Amendment protections.50Substantial
- Page 268 and 269: communicating over the Internet pos
- Page 270 and 271: court will likely, as it has often
- Page 272 and 273: unconstitutional.81 Although CALEA
- Page 274 and 275: data attributable to the target sus
- Page 276 and 277: FBI facility for subsequent examina
- Page 278 and 279: EPCA Section 2518 provides that upo
- Page 280 and 281: The FBI has stated that its use of
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provider liability, the European Commission hopes to ensurepredictability for ISPs and promote harmonization between thevarious member states who must use the Directive as a minimumstandard for enacting their own legislation. As Julia-Barcelo165argues, this approach also eliminates the need for self-monitoring:A horizontal approach is appropriate . . . because theinformation that travels through on-line intermediaryfacilities such as cables, satellites and servers is just asequence <strong>of</strong> bits, a succession <strong>of</strong> zeros and ones which isnot linked to the real meaning <strong>of</strong> the information itself.Therefore, to apply different legal standards to differentmaterial flowing over their systems, on-lineintermediaries would actually have to convert all thosezeros and ones into text, music and images, and monitorand review each piece <strong>of</strong> such information. Imposingsuch an obligation on on-line intermediaries would bringthe Internet to a halt and would threaten the privacy <strong>of</strong>information moving over it.166Julia-Barcelo’s comments highlight a valid concern withvertically applied ISP liability. For the American dual-standardliability scheme to properly enforce Congress’ stated intent inpassing both Acts,167 American Internet service providers must, insome form or fashion, monitor third-party content posted to theirsystems.168 It is this self-policing privilege that Congress soughtto protect by limiting provider liability for third-party content inthe CDA.169 Congress also advanced this goal by limiting providerliability for removing any third-party material that either theprovider or other users found <strong>of</strong>fensive.170 While this liabilitylimitation does enable ISPs to freely monitor and police theirsystems, it does not require any such activity on their part.171 Ascopyright liability <strong>of</strong> ISPs. See id.165. See Julia-Barcelo, supra note 11.166. Id. at 108.167. See supra. text; see also 144 Cong. Rec E160-01 (daily ed. Feb. 12, 1998)(statement <strong>of</strong> Rep. Coble); Joint Explanatory Statement <strong>of</strong> the CongressionalConference Committee, H.R. Conf. Rep. <strong>No</strong>. 104-458 (1996), reprinted in 1996U.S.C.C.A.N. 124.168. See id.169. See id.170. See supra. text; see also 47 U.S.C. § 230(c)(2)(A).171. See Joint Explanatory Statement <strong>of</strong> the Congressional Conference Committee,H.R. Conf. Rep. <strong>No</strong>. 104-458 (1996), reprinted in 1996 U.S.C.C.A.N. 124.
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