During the last decade both US and Europe have regulated internet service providers liability (hereinafter referred to as ISPs). In 1998, the Congress has approved the Digital Millennium Copy- right Act (DMCA) which has modied the Copyright Act of 1976, stating that ISPs are not liable if their activity is limited to a mere technical role which consists in transmitting information on digital networks.The same inspiration has been followed by the E-commerce directive (directive 2001/31/EC) which has imitated, verbatim in some cases, the American law.Two are the main differences among these laws. Firstly, the DMCA covers exclusively copyright infringements, while e-commerce directive can be applied both to criminal and civil liabilities. The latter difference is that e-commerce directive is limited to some activities developed by ISPs (mere conduit; caching; hosting), while the DMCA also regulates liability of search engines (like Google) and hyperlinks.The DMCA as well as the EU directive is based on the neutrality principle: ISPs are not liable as long as they do not select contents or recipients of the information transmitted. The most remark-able issue, however, is probably the fact that both regulations have refused to apply strict liability to ISPs.Starting from these regulations, the paper will analyze some examples of private regulations. It will be specically examined YouTube’s Video ID and eBay’s Vero Program, probably the most relevant examples of cooperation between ISPs and IP holders, and the recent cases which has involved these tools in US, Spain, France and Italy.The paper aims at demonstrating that IP violations are not the crucial matter of these legal ac- tions, which reects a clash between different business models.Private remedies for IP violations, even if efcient, have not reached their goals. The reason is probably extralegal and is given by the fact that new economy services are attracting customers in the entertainment sector from traditional media (people watching YouTube rather than TV pro -grams) and are diverting luxury brands consumers from traditional shops (people buying luxury products on eBay rather than on local dealers).
Old Economy v. New Economy: Intellectual Property, Global Wrongs and Private Remedies
RICCIO, Giovanni, Maria
2013-01-01
Abstract
During the last decade both US and Europe have regulated internet service providers liability (hereinafter referred to as ISPs). In 1998, the Congress has approved the Digital Millennium Copy- right Act (DMCA) which has modied the Copyright Act of 1976, stating that ISPs are not liable if their activity is limited to a mere technical role which consists in transmitting information on digital networks.The same inspiration has been followed by the E-commerce directive (directive 2001/31/EC) which has imitated, verbatim in some cases, the American law.Two are the main differences among these laws. Firstly, the DMCA covers exclusively copyright infringements, while e-commerce directive can be applied both to criminal and civil liabilities. The latter difference is that e-commerce directive is limited to some activities developed by ISPs (mere conduit; caching; hosting), while the DMCA also regulates liability of search engines (like Google) and hyperlinks.The DMCA as well as the EU directive is based on the neutrality principle: ISPs are not liable as long as they do not select contents or recipients of the information transmitted. The most remark-able issue, however, is probably the fact that both regulations have refused to apply strict liability to ISPs.Starting from these regulations, the paper will analyze some examples of private regulations. It will be specically examined YouTube’s Video ID and eBay’s Vero Program, probably the most relevant examples of cooperation between ISPs and IP holders, and the recent cases which has involved these tools in US, Spain, France and Italy.The paper aims at demonstrating that IP violations are not the crucial matter of these legal ac- tions, which reects a clash between different business models.Private remedies for IP violations, even if efcient, have not reached their goals. The reason is probably extralegal and is given by the fact that new economy services are attracting customers in the entertainment sector from traditional media (people watching YouTube rather than TV pro -grams) and are diverting luxury brands consumers from traditional shops (people buying luxury products on eBay rather than on local dealers).I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
