The evolving role of Internet gatekeepers
A European Union Perspective on Digital Copyright and Internet Service Providers’ Liability
di Mirta Cavallo
«It makes me indignant when I hear a work blamed not because it’s crude or graceless, but only because it’s new. Had the Greeks hated the new the way we do, whatever would have been able to grow to be old?»
The digital dilemma is still an open question: the Internet, with its Janus-faced and ever-evolving nature, has destabilized the very foundation of copyright law and questions its application, management, but, above all, its enforcement.
The shift from atoms to bits, along with the information paradox and the fading away of the distinction between corpus mysticum and corpus mecanichum, has opened the possibility to copy and share content as simple combinations of ones and zeroes, easily, quickly, at almost no cost and in huge proportions, to the point that the Internet has been defined as «the largest and most efficient copying machine built by man». The legislator struggles to keep up with technological advancements, that follow one another at an ever-accelerating pace and determine an exponential increase of the modes to infringe copyright online. As a matter of fact, since the very act of copying is structurally part of the functioning of the Internet, the Internet itself constitutes a tricky challenge. Accordingly, the list of Internet-related technologies that constitute a challenge for copyright law comprises not only systems that have been demonized as responsible for the staggering levels of online piracy, most notably peer-to-peer networks, but also technologies which are connected to the very infrastructure of the Internet, like hyperlinking.
The shift from atoms to bits has also determined the advent of a borderless virtual world with no points of control, with the consequence of weakening the traditional principles of state sovereignty and territoriality. In fact, «with the single will of authorities and the simple reign of black letter law, control of the Internet is both impossible and impractical». The tension between state sovereignty, which is territorially bounded, and the non-territorial virtual reality created by network computers, turns into arbitrage and easy circumvention of any state initiative. In light of this, it does not come as a surprise that so far copyright enforcement in the digital environment has been mostly a history of failures: the victories secured by the content industry in the assemblies and court rooms throughout the world have proved to be all illusory in the end. Fighting online piracy is like fighting a Lernian Hydra.
The failed attempts to regulate content in the digital environment is linked to the broader discussion on the regulability and governance of the Internet, significantly defined as «the battle for the soul of the Internet». If according to Cyberlibertarians «the Net interprets censorship as damage and routes around it» on the assumption that Internet freedom is hardwired into its technological infrastructure, on the contrary Lessig believes that the Internet architecture is what can regulate it, to the point that «cyberspace has the potential to be the most fully, and extensively, regulated space that we have ever known -anywhere, at any time in our history. It has the potential to be the antithesis of a space of freedom». Recurring to technology to discipline society from within, in other words, recurring to the machine as answer to the machine, is strictly linked to the notion of Internet gatekeepers as key to regulatory control. As they are behind any activity online, deciding who shall pass through the gate and who shall not, and shaping each person’s social reality and worldview, they are also best placed to properly enforce copyright online.
Finally, after years of failing strategies, the content industry has realized that online intermediaries are not just convenient targets of litigation easier to identify and with deeper pockets or enemies to squash, but possible allies. This has determined the shift from a passive-reactive paradigm, embodied in the safe harbor provisions of the E-Commerce Directive, to a proactive paradigm, whereby Internet gatekeepers are pushed by the content industry to take upon a more active role in copyright enforcement. The European legal framework enables this shift by envisaging the possibility to issue injunctions against Internet Service Providers whose services are used by third parties to engage in copyright infringing activities irrespective of their liabiltiy and by promoting self-regulatory and co-regulatory initiatives that leave to the stakeholders involved to find the compromise solutions best suited to their respective interests. While court orders often consist in obligations to disclose users’ personal information or implement monitoring and filtering technologies, the most relevant initiatives of voluntary cooperation are the graduate response model and the follow the money strategy.
From the foregoing, it appears that, paradoxically, the European legislator encourages Internet intermediaries’ active involvement in the fight against online piracy, but at the same time it deprives them of protection from liability when they exceed a mere passive-reactive role. Paradoxically, in a number of cases, Internet intermediaries are shielded from liability for third party content, but they have to bear the burden of implementing monitoring and filtering measures, which may be financially equally onerous.
Such paradoxes do not exhaust the shortcomings of the current European legislation on the matter. First, interpretative uncertainties lead to divergent applications of the law at national level, with the consequence of frustrating the very goal of the relevant directives to achieve a uniform and well-developed digital Single Market grounded on a certain and predictable legal framework. Divergences among Member States are further fueled by the fact that the E-Commerce Directive provides a cluster of specific liability exemptions, without harmonizing the underlying substantive issues of secondary liability. As a result national courts struggle to fit the European principles into their existing systems of substantive law and, overall, the European legal framework fails to provide the promised uniformity and certainty. Such «fragmented conglomeration of national systems […] is ill-suited to the global nature of the internet». In very truth, «a borderless problem deserves a borderless solution». Accordingly, while for now a truly global solution does not fall within the realm of the politically feasible, European member States should at least overcome their doctrinal divergences and reach an European, coherent and comprehensive regime for intermediary copyright liability.
The current European legal framework could also be criticized for not achieving a proportionate and fair balance between the need to protect copyright, which is a form of property, and other fundamental rights, most notably freedom of expression, privacy and due process. For instance, in the E-Commerce Directive, the lack of a notice-and-takedown procedure, imprudently left to industry self-regulation, has had the perverse effect of incentivizing private censorship, the end result being the sacrifice of fundamental human rights on the altar of private interests. Likewise, the graduate response system sanctions infringing users in a disproportionate way, through disconnection from the Internet, without ensuring accuracy and due procedural guarantees. Monitoring and filtering, despite the legitimacy of the goal pursued, risk endangering the vitality and open character of the Internet and turning it into a huge surveillance machine. Ironically, these measures may not be succesful in solving the problem of online privacy anyway, as infrigners always find new ways to circumvent regulatory constraints, for instance by migrating to friend-to-friend networks or darknets.
Internet gatekeepers may well be best placed to exert control over the Internet and ensure adequate enforcement of copyright in the digital environment. However, their being able to do so, does not automatically entail that they should (be asked to) do it. As a matter of fact, «if a state has positive obligations in the law to ensure a body [of law] is human rights compliant, then the state is duty bound to intervene. […] Reliance on self-regulatory frameworks without guidance on how companies can meet their human rights responsibilities results in a governance gap». The determination of what is legal and can be displayed on the Internet or not is for national courts, not for private corporations that operate with an entrepreneurial mindset, that is to minimize costs (including the legal ones) and maximize profits. Striking a fair balance between all the interests at stake is for the legislator, not for private corporations «that are as much a part of the neoliberal hegemony as corporate rightholders, in wanting to use their property as they see fit and not to have to face regulatory encroachments into this right». Public functions cannot be entrusted with private corporations that are not expected to serve the public interest and respect the same obligations public entities are subject to. Internet intermediaries are «relatively insulated from legislative, executive and judicial oversight» and it is not fair to them, nor wise to ask them to be «judge, jury and enforcer [all] at the same time».
It is the opinion of this author that legislative policies should not be inspired by fear and thirst of suppression. It is true that «earlier generations of technology […] have presented challenges to existing copyright law, but none have posed the same threat as the digital age», but change, however destabilizing it may be, is unovoidable and it should be embraced, rather than fought. Dragging Internet intermediaries into the battle for copyright enforcement is only the most recent expedient to try and stop the clock of history.
The copyright enforcement strategies implemented one after the other over the years have all failed because they deal with the symptoms, rather then the real problem. The real problem is that the delicate balance between private and public interests has been destabilized by the digital revolution and all its cultural, social and economic implications. This explains also why in some sectors of society there is a divergence between what is considered a moral and socially acceptable behavior and what is considered legal, with the consequence that perfectly law-abiding people engage in copyright infringement without a hint of remourse. Certainly, the importance of free flow of information and access to content cannot be considered a justification for copyright infringement, not even if praised as «altruistic piracy». But, at the same time, constitutional protected rights cannot be hindered just because of the demands of a particular group of market operators and governments should not indulge further with the ongoing «protectionist drift» and «monopolistic burdening».
Today, the legislator is asked to strike a fair balance between private and public interests, that is in the very essence of copyright law since the advent of Gutenberg’s printing press in 1436 and the Statute of Anne of 1710. As any law, copyright law must face and adapt to social, cultural and technical changes. As for now, copyright legislation may be deemed inadequate, but this does not mean that copyright itself, as institution, is inadequate, nor that «once published, the work becomes as free as air». Copyright is still the best way to foster creative experimentation and cultural progress, it just needs to adjust. This is a time of change, challenges and legal reinvention. Copyright law will evolve and bridge its traditional principles into this novel landscape. As optimistically declared by Samuels, «the system will handle it. […] I’ll bet that when we come back in 5, 10, 15 years, there will be solutions, and it will not be the end of the world».
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 Fabio Macaluso indicates five measures that, if implemented, would make copyright law better suited for the digital age: i) introducing a system of formal registration, therefore a system of opting-in, subject to periodical renewal; this would ensure certainty and lower transaction costs; ii) reducing the lenght of protection but allowing for an indefinite number of renewal as long as the rightholder financially invests on its work; iii) semplification of the legal framework; iv) express legislative recognition and promotion of the Creative Commons; v) more transparency from Collective management organizations (CMOs), which are bound to have a fundamental role since royalties will be the main source of profit for authors; vi) advertisement tax; vii) more severe sanctions against those who induce or enable copyright infringment. For more about this, read: MACALUSO, Fabio. E Mozart finì in una fossa comune. Vizi e virtù del copyright. Milano, Egea, 2013: 159-176.
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