Vol 7 No 1 - Roger Williams University School of Law

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defamation.184 One case that illustrates the impact of a possiblenotice and take-down regime on ISP liability is the recent U.K.case, Godfrey v. Demon Internet Limited.185In Godfrey, a British math, physics, and computer sciencelecturer sued Demon, a prominent Internet service provider inEngland and Wales, over a defamatory newsgroup posting thatthe provider carried on its service.186 While the actual third-partyuser who originally posted the defamatory statement remainsunknown, it was established that the posting originated in theUnited States with a different ISP.187 Demon’s sole connectionwith the statement was the fact that it carried the particularnewsgroup containing the defamatory content on its service.188The statement in question was “squalid, obscene and defamatoryof the plaintiff” and purported to come from the plaintiff, althoughhis name was misspelled.189 When Godfrey discovered thedefamatory newsgroup posting, he notified the managing directorof Demon that the posting was a forgery and requested that it beremoved from Demon’s Use-net news server.190 Although Demonadmitted receiving the message, and could have “obliterated theposting,” they did not remove the allegedly defamatory materialfrom their server until it naturally expired.191In deciding Godfrey, the court applied the U.K. DefamationAct of 1996,192 which, like the DMCA, provides safe harbors or“defences” limiting ISP liability as a publisher of third-partycontent when the provider can show that he was not the “author,editor, or publisher” of the defamatory statement;193 that he took“reasonable care” in relation to the statement;194 and that he “didnot know, and had no reason to believe, that what he did causedor contributed to the publication of a defamatory statement.”195While the court concluded that Demon was not the actual184. See Julia-Barcelo, supra note 11, at 108.185. 1999 WL 477647 (Q.B. Mar. 26, 1999).186. See id. at *2.187. See id.188. See id.189. See id.190. See id. at *3.191. See Godfrey, 1999 WL 477647 at *3.192. See id. (quoting from the U.K. Defamation Act of 1996).193. See id.194. See id.195. See id. at *3.
publisher of the statement in question,196 it held that the providerwas ineligible for the liability limitation provided by the act.197Since Demon was notified of the defamatory statement and didnothing, the court concluded that the ISP had failed to exercisethe reasonable care required by the Act.198 The court also heldthat Demon, after notification by Godfrey, was in possession ofsufficient information to make the ISP aware that its actions werecontributing to the publication of a defamatory statement.199Because the ISP did not take affirmative action to remove theallegedly defamatory material after Godfrey’s notification, it lostthe liability limitation that the Defamation Act would haveotherwise provided it.200 As a result, the court held Demon liablefor the third-party defamatory statements posted on its service.201Although Godfrey was not decided under the provisionsrecited in the E-Commerce Directive, the Godfrey case is anexample of how strict adherence to a notice and take-downrequirement can result in chilling free speech. As Godfreyillustrates, an ISP under this regime must remove anyproblematic material as soon as it receives notice that theinformation is either defamatory or infringing copyright law toprotect itself from liability. Further, both the Directive andOCILLA recognize liability for ISPs when the provider shouldhave been aware of facts or circumstances making infringementapparent.202 If the reasoning applied in Godfrey is followed, ISPscould be held liable under these provisions for failing to remove196. See id.197. See Godfrey, 1999 WL 477647 at *3.198. See id.199. See id.200. See id. at *7.201. See id. In deciding Godfrey, the court cited the American defamation casesdealing with ISP liability before the CDA, and then distinguished the court’sapplication of the CDA’s complete content immunity for ISPs in Zeran, noting that theBritish Defamation Act “did not adopt this approach or have this purpose.” SeeGodfrey, 1999 WL 477647 at *8. The Godfrey court also distinguished Lunney’scommon law approach to limiting ISP liability by noting that under English commonlaw Prodigy would have been regarded as the publisher of its user’s third party contentrather than a passive conduit. See id. By this discussion, the Godfrey court illustratesthe massive liability that British ISPs faced under common law defamation principles,and how this liability has been significantly softened by recent statutory provisions likethe Defamation Act, which work to create safe harbors for ISPs.202. See 17 U.S.C. § 512 (c), (d) (Supp. IV 1998); Council Directive 2000/31/EC,2000 O.J. (L 178); see also Julia-Barcelo, supra note 11, at 110; Köhler & Burmeister,supra note 159, at 499.
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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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Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
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