As online platforms continue to host vast amounts of user-generated content, questions of copyright liability remain central to the digital economy. Our latest guidance note compares the U.S. Digital Millennium Copyright Act (DMCA) and the EU's evolving safe harbour framework, tracing how each system defines the responsibilities and limits of online intermediaries.
1. The U.S. Framework: DMCA Section 512
Since 1998, the DMCA has provided four key safe harbours—covering transmission, caching, hosting, and linking—that protect online service providers (OSPs) from indirect copyright liability, provided they comply with clear conditions.
These include adopting a repeat-infringer policy, designating a notice agent, and promptly removing infringing material upon notification. Courts continue to interpret these safeguards narrowly, as seen in Capitol Records v. Vimeo (2025), confirming that platforms retain protection only where they lack "actual or red flag" knowledge of infringement and act expeditiously once aware.
2. The EU Model: From the E-Commerce Directive to the DSM Directive
The E-Commerce Directive (2000) introduced parallel exemptions for "mere conduit," caching, and hosting activities. However, the 2019 Directive on Copyright in the Digital Single Market (DSM Directive) fundamentally reshaped this regime.
Under Article 17, online content-sharing service providers (OCSSPs) are deemed to perform an "act of communication to the public" and must obtain licences or demonstrate "best efforts" to secure authorisation, prevent infringing uploads, and act swiftly upon notice. This shifts the EU model away from pure immunity and towards a due diligence framework—a move confirmed by recent cases in Germany and Belgium interpreting national transpositions of Article 17.
3. Key Divergences
While both systems share the goal of balancing copyright enforcement with digital innovation, they diverge in philosophy and execution:
- The U.S. DMCA remains reactive, relying on notice-and-takedown procedures and limited intermediary duties.
- The EU model now imposes proactive licensing and prevention obligations, edging closer to shared responsibility between platforms and rights holders.
Recent jurisprudence underscores this evolution: U.S. courts continue to refine what constitutes "knowledge" and "control," while European courts assess whether platforms have met "best efforts" to license or remove infringing content.
4. Looking Ahead
The U.S. and EU frameworks are converging on a common principle—platform accountability—but through distinct paths. The U.S. relies on procedural compliance and judicial interpretation, whereas the EU enforces statutory diligence and transparency obligations.
As global content-sharing platforms operate across both regimes, aligning internal compliance policies with each jurisdiction's evolving requirements has become an essential element of risk management and copyright strategy.