Jul 6, 2018

The Copyright Rule That Could Dramatically Change the Internet

Andrea O'Sullivan Program Manager, Technology Policy Program , Brent Skorup Senior Research Fellow

It has only been about a month since European regulators dropped a bomb on the internet with the rollout of its General Data Protection Regulation (GDPR), which imposed major costs on web platforms of all sizes and strengthened the market position of tech titans.

Now, the EU is turning its eye to copyright infringements online, and its proposed rules would be similarly damaging to the internet. The motivations for these new rules are hard to discern, and the extent of the collateral damage is hard to predict.

Thankfully, the most recent version of the policy was just rejected by the EU Parliament. But this is far from the end of the saga, and supporters are determined to keep up the pressure. A new version of the rules will be back on the agenda later in September. Unless the revised rules are significantly changed, the proposal risks undermining much of the openness of the internet.

Called the EU Copyright Directive, the regulations would effectively deputize web platforms to be active enforcers of copyright rules. Under Article 13 of the plan, not only would platforms have the burden of doing regulators' work, they would be compelled to install filters (“effective content recognition technologies”) that would proactively check user-posted content for potential violations. Then there’s Article 11, which would compel social media platforms like Facebook to purchase a license before they would be allowed to link to content from news organizations.

Not only are these proposed rules concerning in terms of logistics and civil liberties, they represent a dramatic departure from the relatively permissionless environment that has allowed the internet to develop into what it is today.

It’s important to point out that just because these are EU laws does not mean that American citizens and others will be immune to its effects. First, the interconnected nature of the internet ensures that changes in one municipality will likely affect other’s browsing experiences.

But more generally, when one large jurisdiction imposes new regulations, companies may opt to just apply it everywhere out of an abundance of caution for compliance. This kind of “regulatory externality” explains why regulations imposed by, say, the state of California are often imposed on the nation as a whole even though it is not strictly required.

Consider the implications. No longer will the internet be a free and instant medium where people from across the world can express themselves without fear of censure. Their comments would first have to be sniffed and potentially scrubbed by moderators at tech companies before passing the muster of the EU.

One of the chief casualties of the EU Copyright Directive may be one of the internet youth’s most beloved: memes. Because so many of the derivative images, videos, and audio used in these gonzo communiqués include copyrighted works, they would be a no-go under the new rules. Higher forms of digital art would be threatened as well, including musical artists who sample other works to build their own new masterpieces.

The rules would also impose massive costs on the “information society service providers that store and provide to the public large amounts of works” (most websites) that the rules address. Big guys like Google can handle this, but smaller companies may be smothered. And in the case of Article 11, requiring platforms to purchase licenses to share news articles will only further strengthen current market leaders who have ample funds to comply.

There are also the chilling implications for civil liberties. After all, a tool that can be wielded to catch IP violations could also be gamed by the unscrupulous to stifle discussion of sensitive political events or government or corporate malfeasance.

For all of these reasons, a group of 70 high-profile technology commentators including several fathers of the early internet signed an urgent letter pleading with the EU to reverse course and reject the proposal.

Fortunately, the new rules need to go through more rounds of approval before they become law. But they represent a dangerous trend towards the reversal of the policies that made the internet what it is today.

We take the free and collaborative nature of the web for granted, but things easily could have turned out differently. Few people realize that the internet that we know and love today is largely thanks to a little-known but critical policy known as Section 230 of the Communications Decency Act.

When more people began coming online and posting content in the mid-1990s, there were significant policy questions about how to treat violations of established laws. Specifically, policymakers didn’t know how to handle situations where individual users posted illicit content—like copyright violations, stolen personal information, or incitements to criminal activity—on a website. Who should have been liable? Obviously, the individual would bear some blame. But to what extent should third party intermediaries like websites or email providers or chat services be held responsible for user-submitted data?

A regime where intermediaries were held strictly liable would have been a disaster for internet growth. Platforms would have the burden of examining every single post that a user sent, and would need armies of lawyers on hand. And this was before the advent of machine learning assistance! Platforms very well could have just washed their hands of the whole affair and blocked off most avenues for user participation.

Except that’s not what happened, and Section 230 is largely to thank. This policy shields “interactive computer services” from liability through user-posted content. This means that platforms are free to spend their time innovating and improving their services without constantly running afoul of IP law. And it means that you and I can enjoy the veritable cornucopia of outlets on which to express ourselves and connect online that have flourished in its wake.

The EU’s proposed Copyright Directive represents an approach diametrically opposed to Section 230. The outcomes, therefore, will be the inverse as well: less speech, less innovation, and more market consolidation. If EU regulators care to preserve those properties of the internet that make it what it is today, they should change course for the revised September legislation and keep with the demonstrated success of Section 230.

Photo credit: OLIVIER HOSLET/EPA-EFE/Shutterstock 

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