Should take down mean stay down? EU’s Big Internet quiz leaks

Perhaps the law that created this whack-a-mole shouldn't be a business model

Brussels wants to know if you think Silicon Valley’s giant internet plantations do business fairly in Europe – and is inviting views on Big Internet’s biggest legal loophole.

A leak of the European Commission’s imminent platforms consultation, seen by The Register – it’s one of several – wants Europeans' views on whether “take down should be mean stay down.”

Copyright infringement liability for platform services like Google’s YouTube, Facebook’s Instagram or Soundcloud is just one of the areas on which the EU Commission wants views.

The Commissioners want to know whether Uber-style intermediaries need regulation, whether the taxpayer could benefit from the commercial use of public sector open data, and whether regulators should treat the burgeoning Internet of Things sector as a special snowflake.

The Commission defines a “platform” as an online intermediary operating in a two sided market, but invites better definitions. Intriguingly, it asks if the definitions in the 2001 InfoSoc directive are too narrow, implying that it may need to treat ISPs and giant Californian services companies differently. Let’s see why.

When the internet emerged, regulators around the world sought to limit the risk for services companies from liabilities for infringing someone’s copyright or trademarks. Confusingly, these were called “safe harbour” laws; it’s doubly confusing, because they’re not only very limited in scope, but the same “safe harbour” term is used to describe a specific condition in data protection law applying to US companies operating in Europe.

The EU wrote its version into the 2001 Information Society Directive.

The idea was sensible: to encourage investment in internet services, and protect well-meaning and law-abiding services and sites from being clobbered with both vexatious litigation and the risk of massive damages.

But when such laws were developed, the power of copyright-based industries still dwarfed that of internet companies, and they could exert this power on deals. Now the boot’s on the other foot and Silicon Valley is taking its vengeance, taking advantage of the “safe harbour” from copyright infringement to exert terms that critics say are unfair.

For example, last year, in a take-it-or-leave-it contract put before independent music companies, Google required music companies to indemnify any uploader of their music to YouTube from litigation. In other words, Google was saying “you can sign this deal, and allow us to use your music how we like. But if you don’t sign it, we’ll use your music anyway, and won’t pay you.”

Google could only do so for two reasons: it’s the world’s de facto free music jukebox with enormous market power; and secondly, because the legal loophole made it safe from copyright infringement claims. The so-called “safe harbour” provisions allowed internet companies to maintain a black supply chain, in case their legal supply chain failed – or alongside their legitimate supply chain, which meant they could set a favourable price.

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