Noticeably different? Consequences of the DSM Directive’s OCSSP liability regime on DSPs active in the EU and the US

The EU DSM directive,1 passed on 17 April 2019, introduces significant changes to copyright infringement liability and that EU safe harbour law and policy for digital service providers (DSPs) previously enshrined in the E-Commerce Directive.2 OCSSPs are now subjected to primary liability and have to comply with stricter but less clear conditions (compared to previous provisions) in order to avoid liability for copyright infringement. As a result, DSPs active in the EU and the US3 will have to follow a different set of rules and will be required to implement different policies in each jurisdiction, presumably leading to higher costs. With this presumption in mind, this article seeks to outline the ramifications of the DSM Directive for DSPs active in the EU and the USA. It assesses the benefits and costs arising from the DSM Directive compared to the implementation of DMCA policies in the USA, and analyses how risks may be lowered in the future. By comparing the newly introduced EU liability regime with the US DMCA policies, we foresee possible risks connected to the new liability regime and provide recommendations for EU Member States implementing the DSM Directive.