Rami Olwan

All About CyberLaw, Copyright and Developing Countries

Comment on Mark Lemley

I read with interest the draft paper of Stanford Law Professor Mark A. Lemley, entitled “Rationalizing Safe Harbors”. Professor Lemely is an important intellectual property (IP) name within the academia.

The topic of his quite important that we need to rationalize safe harbors. He has provided two main arguments that we need to rationalize safe harbors and we will use the safe harbor provisions for innocent publishers in the trademark law as a starting point.

The important question is whether professor Lemley’s proposals for new safe harbors are good enough?  Did he manage to give us a clear view of how we need to restructure safe harbor provisions? I really doubt his proposals as I will explain later why I think they are not effective enough.

Professor Lemley presented a good introduction to the topic when he told us that there is logic behind having safe harbors and this is simply because not having them will have a dreadful affect on the development of the internet and technologies in the future. I agree and I should add that having safe harbor provisions is a kind of compromise that the law is making between allowing internet and online service providers to do business and limiting their copyright liability for actions that they are not responsible for. This comes within the general aim of copyright law to have a kind of balance between two extremes not having protection at all and having limited protection with certain qualification.

I totally also agree with professor Lemley when he argued that “the current safe harbors provisions came as a confidence not as a result of structured thinking”. This is because safe harbos provisions were created in a different timing and it may be difficult to apply them on the new online service providers that is constantly changing. It is clear that Congress wanted to codify the case law that dealt with the liability of internet service providers. The Digital Millennium Copyright Act (DMCA) safe harbor provisions should be a guidance for other countries that is considering drafting similar provisions.

As for the proposal of professor Lemely of how we need to rationalize safe harbors, I noticed that he does not have coherent proposal for reforming safe harbors and that is because he borrows from different systems to make the needed reform. He takes on one occasion from trademark regime and on another from the copyright regime. He also proposes to create a system that is similar to the UDRP system to handle copyright and infringement claims. I am not sure if this would be a good suggestion since the UDRP system is very narrow in its scope and there have been much criticism on its effectiveness. I am not sure if it is a good idea also to apply a similar system on a totally different claims that relate to another form of IP mainly copyright not trademark.

I think this shows that professor’s Lemely’s theory of restructuring safe harbors is not well developed as he is not sure how to reform it properly and what is exactly needed to achieve that purpose.  Finally, I agree with professor Lemely that the problem of safe harbors should not be looked only from the local perspective and should be looked also upon from the international perspective as well. I do not agree with him that “the administration and the congress” should press for treaty commitments creating safe harbors.

I am not sure in the first place that this is a proper way of handling the matter since not many countries need these provisions as they do not have a sophisticated business of online service providers and traditional laws including copyright laws maybe enough in that regard to solve problems that may appear in the near future.

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