Wednesday, September 28, 2016

[New Paper] Holey Cap! CJEU Drills (Yet) Another Hole in the E-Commerce Directive’s Safe Harbors

Yesterday, I put on SSRN a draft of my upcoming piece for JIPLP, in which I reflect on Mc Fadden and its broader consequences. Its called: Holey Cap! CJEU Drills (Yet) Another Hole in the E-Commerce Directive’s Safe Harbors.

Here is the abstract:
The E-Commerce Directive is going through a hard time. Numerous policy initiatives and judgements of the Court are exposing its provisions to a real stress test. The goal of this paper is not summarize or evaluate in general this trend, but to show how a single decision of the CJEU with few open issues can lead to destabilization of the system. The center-stage of this brief article is the Court’s recent decision in Mc Fadden v Sony Germany and its short-term and long-term consequences for the future of safe harbours, their scope and IP enforcement. The paper argues that by allowing the exclusion of pre-trial costs and litigation costs from the liability exemptions, the Court has drilled yet another hole in the system of safe harbours. It also highlights that the decision to permit password-locking as an enforcement practice is a short-sighted policy choice that will require number of clarifications. Last but not least, it is argued that a root-cause of the rejection of Advocate General’s proposition to outlaw password-locking is the Court’s treatment of the fundamental rights as the only framework of reference for IP enforcement. This causes also constructive and well-explained arguments of good innovation policy to fall often on deaf ears.
You can download it here

I would love to hear your feedback! So if you have some, please get in touch.

2 comments:

Anonymous said...

Concerning who would have to bear the costs for ordering an injunction:

para 78 : “the Court considers that, TAKEN IN ISOLATION, Article 12(1) of Directive 2000/31 does not prevent that same person from claiming the reimbursement of the costs of giving formal notice and court costs incurred in a claim such as that outlined in the preceding paragraphs.”

So, in my opinion, the question of the effects of article 15 (not referred to by the national court) on costs remains open.

Huťko said...

Art 15 or 12?