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Jane C. Ginsburg

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Jane C. Ginsburg

To a US appraiser, article 17 of the Digital Single Market Directive suggests the EU has learned from American mistakes (and from its own) in the allocation of internet intermediaries’ liability for hosting and communicating user-posted content. Before the DSM Directive, article 14 of the 2000 eCommerce Directive set out a notice-and-takedown system very similar to the regime provided in 17 USC section 512(c). Both regimes replaced the normal copyright default, which requires authorization to exploit works, with a limitation on the liability of service providers who complied with statutory prerequisites. Because the limitation ensured that service providers would not be liable in damages, both regimes effectively codified ‘Seek forgiveness, not permission’. In both the US and the EU, host service providers incurred no obligation to clear rights in copyrighted content posted by users who were not the authors of that content, nor did they have any ‘general obligation … to monitor the information that they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity’. Nor did the law in either the US or the EU require host service providers initially to block unauthorized content from being posted to their sites. Content would go up, and the burden of finding infringements and notifying the host service providers fell on authors and copyright owners. Once notified, it sufficed for the service to respond ‘expeditiously’ to the notice by blocking access to or removing the infringing content.

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Jane C. Ginsburg

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Jane C. Ginsburg

In Dastar Corp v Twentieth Century Fox Film Corp., Justice Scalia colorfully warned against resort to trademark laws to achieve protections unattainable by copyright, lest these claims generate " a species of mutant copyright law that linits the public's 'federal right to "copy and to use,"' expired copyrights."