1709 Blog: for all the copyright community

Saturday, 22 September 2012

New paper on ISP liability: how to reconcile US and EU approaches?

Bruce adores Alvin and the Chipmunks movies, and 
says that he only downloads them legally ... oh well ...
As is well known, liability of ISPs for third parties' infringements is currently one of the most controversial topics in the enchanted realm of copyright&trademarks, from both a theoretical and practical standpoint. 
Different approaches have emerged in the EU and the US, and these seem sometimes difficult to reconcile. 
Béatrice Martinet, currently a research fellow at Stanford and a regular contributor to the TTLF Technology Law & Policy News blog, has just published an intriguing paper entitled  'Internet Intermediaries' Liability for Copyright and Trademark Infringement: Reconciling the EU and U.S. Approaches', which can be accessed here.
Her contribution compares the legal regulation of ISP liability for copyright and trademark infringements in the EU and the US, and provides guidelines and proposals on how to reconcile the two approaches.
As explained by Béatrice:
"Over the past ten years, the potential liability of online service providers for third party content has raised one of the most spirited and fascinating debates in the legal arena, putting right holders, service providers and Internet users at loggerheads.
In the United States and in Europe, lawmakers have endeavored to resolve this tension by enacting, more than ten years ago, a set of essentially consistent regulations – most notably the U.S. D.M.C.A. and the EU E-commerce Directive – aimed at fostering the growth of the digital economy, while not hampering the protection of IP rights in the digital environment.
However, courts in Europe and in the United States are facing increasing difficulties in interpreting these regulations and adapting them to a new economic and technical landscape that involves unprecedented levels of online piracy and new kinds of online intermediaries. As a result, courts in Europe and in the United States have reached contrasting conclusions and have failed to offer consistent guidelines in an increasingly global market.
The present study purports to show, after a short introduction (Part 1) that although the legal framework regulating Internet intermediaries’ liability in Europe and in the United States is globally consistent (Part 2), its interpretation by U.S. and different courts in Europe has however been very different (Part 3). The last part of this study offers a brief outline of the recently legislated and draft reforms of copyright law in Europe and in the U.S. (Part 4.1) and concludes that rather than through new legislative reforms, the U.S. and EU approaches to online piracy could be reconciled through a more consistent interpretation of our current legal frameworks and the implementation of a wide range of business-driven solutions (Part 4.2)."

The 1709 Blog welcomes such a timely contribution and hopes that its readers will enjoy it!
Béatrice is also on Twitter - follow @beamartinet to receive updates from her.

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