n 1998, the American Congress enacted the DMCA to update copyright law by keeping pace with the Internet. The DMCA added to copyright law a most important component in an effort to balance the interests of copyright holders and NSPs in a way that will foster the growth of the Internet, the safe harbor provisions that protect NSPs from monetary lia- bility. These provisions, codified at 17 U.S.C. ยง 512, have become one of the most important parts of the DMCA.

Two years after the enactment of the DMCA, the European E-Commerce Directive was approved in June 2000. The E-Commerce Directive, which also adopted safe harbors, aims to remove obstacles to providing cross-border online services in the European Union and to provide legal certainty to business.7 Although largely inspired by the DMCA safe harbors, the approach of the E-Commerce Directive differs from the DMCA in a number of significant ways.