Responsabilità degli intermediari di Internet e nuovi obblighi di conformazione: robo-takedown, policy of termination, notice and take steps

Abstract

Internet service provider liability and new duties: robo-takedown, policy of termination, notice and take steps The essay — after clarifying the outlines of the two main “safe harbor” provisions which limit the liability of online service providers as regards copyright infringement in the Western Legal Tradition, namely the U.S. section 512 of the Digital Millennium Copyright Act and articles 12 through 15 of the EU Directive on e-commerce — enquires the way in which the most recent case-law, respectively that of the U.S. Federal Courts and of the European Court of Justice, is enhancing the standard of protection and the enforcement of intellectual property rights. Indeed, both the Digital Millennium Copyright Act and the EU e-commerce Directive provide little guidance on the meaning of the no-liability rule’s various requirements. But in the course of time, Courts have looked at certain recurring features to determine whether or not a service provider satisfies the conditions to be eligible for any of the “safe harbors”. The Author then looks at the significant changes in the use of the Internet over the past decade and focuses attention on the new techniques employed by copyright owners to protect their own rights, such as relying on robo-takedown notifications, seeking the assistance of third-party rights enforcement organizations or asking Courts for broad and flexible injunctions against conduit internet service providers. It is worth noting that each of these practices, individually taken, might jeopardize the free flow of information and cause a severe backlash on the individual’s access to the Internet, which would be unduly restricted as a consequence of a broad enforcement of copyrights. Altogether, robo-takedown, poorer accuracy requirements for notices, the policy of termination and broad and flexible permanent injunctions cast serious doubts over the actual implementation of the due process principle.