Intermediaries’ Precarious Balance Within Europe: Oddly Placed Cooperative Burdens in the Online World

Raymond, Anjanette H. | April 17, 2013

The Newzbin cases mark a clear shift in the responsibility that European based internet service providers must take in protecting intellectual property rights. Previously, that burden laid primarily with rights holders. Today, however, legislative bodies and courts in both the European Union and the United States have shifted the expectation of protections to a shared burden amongst internet service providers (ISPs) and rights holders. The SABAM case begins to outline and define the full parameters of that shared burden. However, numerous issues exist in relation to the amount of burden each party must undertake within this shared burden standard and to date few reasonable responses have been advanced to assist ISPs in living up to this shared burden without being subjected to additional costs and potential liability. The law remains fragmented, with potential minefields abounding for ISP liability, despite the fact that service providers often work hard to comply with the law. Something must change. Namely, the entire online community—rights holders, ISPs and the online users —must share the burden of protecting intellectual property holders’ rights in a way that makes sense for all parties. Placing an unsustainable burden upon ISPs will not benefit anyone and will lead to undesirable consequences.