| 'Under a self-regulatory regime, our liberties are erased in favour of contractual agreements.' |
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Under a self-regulatory regime, our liberties are erased in favour of contractual agreements.
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Such agreements leave individuals with no freedoms on the internet - except to subscribe to terms dictated by parties with vested interests  .
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The standard model of self-regulation, for copyright violation on the internet, is notice and takedown. This is a procedure whereby anyone who feels that their copyright is infringed upon by internet content can demand the removal of that content, without having to prove before a court of law that infringement has taken place.
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The argument usually given for why such a procedure is necessary is that court procedure is slow, and unable to deal with the rapid copying and dissemination made possible by the internet. Because there are national limits to jurisdiction, it is also argued that courts cannot efficiently deal with copyright infringement committed over an international medium like the internet.
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But why should it be more important for disputes to be dealt with efficiently rather than justly?
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Jurisdictions have national limits for good reason. A country's law reflects the society in which that law emerged, and the individual freedoms and values that have been successfully fought for in that society. Courts are not the ideal places to take disputes of any kind - far from it - but where regulation is concerned, they often represent the most equitable footing in an otherwise unequal society.
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In most Western countries, the law values the presumption of innocence, where it is incumbent upon the person alleging an offence to prove that the offence has taken place. This offers the individual protection from insubstantial and malicious allegations - not just because the plaintiff has to prove an offence has taken place, but because the plaintiff has to negotiate the obstacle of taking their allegation to a court of law to begin with.
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Copyright is a framework designed to balance reward for creators with the fair use of their creations by the public. Copyright is also a means through which the entertainment and publishing industries secure profits. Without the judiciary to interpret and apply copyright, such inconvenient protections as the presumption of innocence, and the need for the individual interests of the citizen to be equitably represented against the vested interests of the marketplace, would have been done away with by the entertainment and publishing industries a long time ago.
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But when it comes to the internet, these protections have been done away with.
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In a misuse of the powers of the judiciary, legislation has been introduced which forcibly replaces due judiciary process for copyright disputes with self-regulation by the marketplace.
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In the USA, notice and takedown is formalised in the Digital Millennium Copyright Act (DMCA) , which forces internet service providers (ISPs) to take down material whenever they are notified of copyright infringement. The DMCA does, however, grant the content provider (the publisher of the disputed content) an opportunity to demand that removed content is subsequently replaced - in which case the plaintiff's claim must either be dropped or taken to court.
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So due process still exists for copyright regulation in the USA, but only as a fallback for the accused, rather than as a default protection that can be relied upon. The DMCA allows plaintiffs to intimidate - firing a warning shot across the content provider's bows by having content removed, with the implied threat of a court action to follow if that content is reinstated.
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Under self-regulation, it is impossible to tell whether plaintiffs have copyright concerns at all, let alone legitimate ones. In a widely reported case, the Church of Scientology successfully invoked the DMCA to have a website that was critical of its practices, but not guilty of any clear infringement of copyright, removed from search engine listings . Projects dedicated to making such abuses of notice and takedown public knowledge, such as those run by the Chilling Effects Clearinghouse and the Electronic Frontier Foundation , give us a disturbing glimpse into an otherwise hidden and unaccountable world of content removal.
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In Europe, the Ecommerce Directive enforces an even worse self-regulatory regime, without preserving due process at all. The Directive forces ISPs to take legal responsibility for copyright-infringing content, as the DMCA does. But the Directive then dictates that governments must 'encourage...the drawing up of codes of conduct...by trade, professional and consumer associations or organisations' for copyright regulation .
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The Ecommerce Directive exports the entire regulatory apparatus for copyright into the marketplace, where it vanishes from public view. With the DMCA, the US authorities got halfway towards implementing such an invisible, unaccountable regime. The European authorities went the whole hog.
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European industry, mandated by the Ecommerce Directive to make something coherent of self-regulation, is now drawing up notice and takedown procedures, which seem to be driven more by fear than legal principle. A risk management mentality prevails, with industry stakeholders seeking primarily to maximise their profits and minimise their liability.
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Our liberties rarely come into this discussion - except to be conflated with the narrow contractual sphere of consumer rights, where you either pay to have your say, or you become a self-appointed consumer rights champion, claiming to represent the opinion of a public that never elected you.
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Sandy Starr has consulted and written on internet regulation for the Organisation for Security and Cooperation in Europe, and for the European Commission research project RightsWatch. He is a contributor to Spreading the Word on the Internet: Sixteen Answers to Four Questions, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 576 KB)); From Quill to Cursor: Freedom of the Media in the Digital Era, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 399 KB)); and The Internet: Brave New World?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)).
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