A United States Perspective on Digital Single Market Directive Art. 17

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, art. 14 of the 2000 eCommerce Directive set out a notice-and-takedown system very similar to the regime provided in 17 U.S.C. 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.”Part I of this Chapter will outline the text and judicial interpretation of the US Online Copyright Infringement Liability Limitation Act's (OCILLA) notice and takedown provisions in order to explain the regime that one might view DSM Directive art. 17 as correcting. Part II will analyze the subsections of art. 17 in order to explain how art. 17 works, including how it changes the prior EU legal regime, and what it leaves untouched. Part III will compare art. 17 with US law in order to consider what the US might learn from the EU