Europe Leads With A Solution to the “Safe Harbor”Problem

Recital 38 of proposed European Commission Digital Single Market reforms:

In order to ensure the functioning of any licensing agreement, information society service providers storing and providing access to the public to large amounts of copyright protected works or other subject matter uploaded by their users should take appropriate and proportionate measures to ensure protection of works or other subject matter, such as implementing effective technologies. This obligation should also apply when the information society service providers are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC.

The legacy safe harbors in the U.S. legislation commonly called the Digital Millennium Copyright Act (DMCA) and its European counterpart are a dichotomy:  The law provides a little latitude to reasonable people acting reasonably, but it also provides a smokescreen for those who are trying to fake their way to one of the great income transfers of all time.

Which players are on which side of that dichotomy?  One easy yardstick is the ISPs who participate in the Copyright Alert System and those who don’t.  CAS members have a real commitment to infrastructure, are not in a line of business that is based on commoditizing other peoples value, and seem to have a genuine commitment to staying within the boundaries of the DMCA safe harbors.

And then there’s Google and its wholly owned subsidiary YouTube.  It’s been 10 years since Google acquired YouTube and it’s an even bigger mess today than it was when it was operated as a blatant infringement machine.  But the real risk about YouTube is that Google has shown other powerful multinational corporations that you don’t want to infringe a little–you want to infringe a lot.

Now we can add Facebook and Vimeo to the list of billionaires who profit themselves by hiding behind the DMCA safe harbors.  These others, especially Facebook, are likely to simply point to YouTube and say if you’re going to shut us down, you have to shut them down, too.

And they have a point.

That’s why it’s so refreshing to see the European Commission taking a selective approach to tackling safe harbor abuse.  While I’m sympathetic to the urge to try to abolish safe harbors altogether, I don’t think that’s fair to the good actors in the ISP space.  Wouldn’t you rather have other ISPs point to the good corporate citizens like AT&T, Cablevision, Comcast, Time Warner and Verizon as a model rather than Google and Facebook?  (After BMG Rights’ multimillion dollar victory over MIC Coalition member Cox Communications we have to assume that the industry understands where the boundary is, but time will tell.)

A better starting place for reforming safe harbor abuse might be to identify the bad actors and deny them the chance to misuse the law to commoditize the property rights of artists, among others.  Given the lobbying clout that Google and Facebook can bring to bear in the U.S., we’re probably going to have to wait for the European Commission to lead the way forward as they have with antitrust prosecutions of Google.

It should come as no surprise that nations that value their creators are willing to take on rapacious multinationals even as the Googles and Facebooks desperately try to increase the size of their lobbying footprint on the faces of Europeans.

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