Self-regulation makes us all blind

The internet is said to empower anybody with a computer and a connection to publish whatever they like. But content can be removed from the internet by any company that doesn’t like it – and they don’t even have to go to a court of law to justify their actions.

Internet service providers (ISPs) often remove content that is alleged to be illegal, without recourse to the courts and without consulting the content provider. The area where such unaccountable self-regulation is becoming most institutionalised is copyright, where ‘notice and takedown’ (when notice of infringement is given to the ISP by the copyright owner, and then the ISP takes the material down) is now common practice.

RightsWatch (1), an initiative which ‘is exploring how a voluntary, self-regulatory approach to notice and takedown might produce benefits on a Europe-wide basis’ (2), held a conference on these issues in London in mid-February 2002 (3) – where Greg Wrenn, associate general counsel for Yahoo! (4), talked about the US experience of copyright legislation.

He described how convenient it is to be able to remove offending internet content within two days under the Digital Millennium Copyright Act (DMCA) (5) – contrasting this ‘extremely fast relief’ to the days of the cumbersome courts. He argued that ‘frequent fliers need to be yanked’, and that it is sometimes necessary to ‘terminate users’ who repeatedly infringe copyright. If self-regulation is business acting as judge and jury, then ‘terminating users’ is business acting as executioner.

Peter Van Roste, senior regulatory affairs counsel at WorldCom (6), was more moderate (7). He described the cooperation protocol that exists between the Belgian minister of telecommunication, the Belgian minister of justice and the Internet Service Providers Association, which holds that the ‘central contact point…in the fight against offences committed via internet…has to be a judicial contact point’ (8).

This emphasis on the judiciary handling contentious internet content instead of the industry did not go down well. Somebody from the Motion Picture Association (9) suggested that the Belgian authorities should be liable for the cost of prolonged copyright infringement while disputes take time to be assessed – which suggests that copyright holders now see the courts as an obstacle, and don’t mind saying so.

Copyright disputes are rapidly disappearing from any sphere of public debate. When disputes do arise, whatever the limitations of a court of law, surely it is better that they are had out in view of the public, in court, rather than having them resolved behind closed doors by the internet industry (10).

Joe Kaplinsky explains elsewhere on spiked that intellectual property (IP) is simultaneously a form of property and a form of regulation, but that it is its latter expression – IP as regulation – that is increasingly significant today (11). A constant regulatory impulse surrounds the internet, and arguments from morality to IP are used to justify regulating it (12).

This regulatory impulse is a big problem. It restricts our freedom to read and publish online. And it tends to go unchallenged – it is striking that when there is a debate about regulation of the internet, it usually focuses on alternative forms of regulation instead of challenging the need to regulate the internet at all.

RightsWatch is currently making a bid to standardise and oversee all self-regulation of copyright-infringing internet content in Europe. It is a UK-based, not-for-profit company run by a consortium which, with one exception (13), consists of major players in the telecoms market (14) and providers and promoters of copyright enforcement (15). It is financed under the auspices of the European Commission’s Fifth Framework Programme (16).

The companies that run RightsWatch have high hopes for its success. One of these is British Telecom (BT), whose European regulation manager Martin Atherton says: ‘by the end of the project in 2002, we hope to have developed the model for an organisation with broad industry support which will facilitate a pan-European self-regulatory procedure for the removal of material infringing copyright.’ (17) Such hopes are understandable, given the threat that online copyright infringement poses to business interests.

But if research and development invested in by the European Commission is to have Europe-wide regulatory consequences, then why is it being overseen by parties with vested interests? Surely internet users should have a say in a process that may affect what they can read, watch and download?

RightsWatch makes much of its neutrality and openness. But internet users never elected me, RightsWatch or anybody else who attended ‘Notice and Takedown in Europe’ to represent them, so it can’t be said that internet users played any role in the conference proceedings.

The conference was chaired by Diana Wallis, the Liberal Democrats leader in the European Parliament (18). ‘I won’t insult you by calling you parish councillors’, she said in her opening remarks, prompting a laugh from the audience. But parish councillors is pretty much what we were. Although new forms of self-regulation were up for negotiation – to be worked out by the various commercial interests in attendance – the broader regulatory consequences of the event were a foregone conclusion. When I raised political objections to self-regulation, RightsWatch and the rightsholding companies were hardly going to agree with me, pack up and go home.

The courts that have traditionally enforced IP law offer no guarantee of justice being served. But once somebody is accused of copyright infringement, then the minimum requirement for a fair hearing is a separation between the rightsholder who pursues a grievance and the court that presides over the case.

When the rightsholder acts as judge, jury and executioner in a copyright dispute, there can be no fair hearing for the accused. Whereas a court of law is capable of recognising individuals as citizens, RightsWatch can only describe individuals as ‘stakeholders’.

The shift from state regulation of the internet to industry regulation is an ongoing trend (19). But the expression of this trend in copyright regulation is a consequence of the extension of traditional copyright law to internet content, enshrined in the World Intellectual Property Organisation (WIPO) Copyright Treaty (1996). The Treaty says that ‘authors of literary and artistic works shall enjoy the exclusive right of authorising any communication to the public of their works, by wire or wireless means’ (20).

This seems fair enough at first, at least in the terms of traditional IP law. But it does nothing to address the essential difference between ‘wire’ and ‘wireless’ means of communication – namely, the ease with which material can be reproduced and distributed online, which makes it very difficult technically to enforce IP law on the internet through the courts.

So when the WIPO Copyright Treaty was implemented as national legislation in the USA, in the form of the DMCA, regulation was ushered in from outside the courts. The DMCA states that an ISP ‘shall not be liable for monetary relief’, provided that ‘upon obtaining…knowledge or awareness’ of content that infringes copyright, it ‘acts expeditiously to remove, or disable access to, the material’ (21). This forces ISPs to remove material based on notification alone, without the prior involvement of a court.

The same courting of self-regulation occurred when the WIPO Copyright Treaty was implemented in Europe as part of the European Parliament and Council Directive on Certain Legal Aspects of Electronic Commerce in the Internal Market (2000/31/EC), commonly known as the Ecommerce Directive. Using similar wording to the DMCA, the Ecommerce Directive dictates: ‘Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of a service’, provided that ‘upon obtaining…knowledge or awareness’ of illegal content, the ISP ‘acts expeditiously to remove or disable access to the information’ (22).

The DMCA and the Ecommerce Directive both lumber ISPs with responsibility for removing all allegedly copyright-infringing content they are notified of. ISPs never asked for this responsibility. When the UK government held a consultation on the Ecommerce Directive, it reported that the ISP liability was ‘the biggest single stumbling block’ among respondents, and that both ISPs and content providers objected to ‘ISPs acting as “judge and jury”’ (23). A WIPO study of ISP liability acknowledges that ‘the liability of online service providers is perhaps the most controversial legal issue to emerge from cyberspace’ (24).

Despite this, the DMCA and the Ecommerce Directive are now used on a regular basis to bully ISPs into accepting complaints of copyright infringement on faith.

Copyright protection group the Business Software Alliance (BSA) (25) recently requested Finland’s second-largest ISP (26) to remove certain internet content, citing the Ecommerce Directive to justify its request. The ISP refused, but after receiving a court order backed down. According to a lawyer retained by the BSA, of the thousands of similar letters sent by the BSA each year ‘all but two to three percent of these letters are immediately acted upon’, and the offending ISP in this instance has now ‘agreed to take action in future situations without the need for a court order’ (27).

This suggests that a huge proportion of online copyright disputes are now resolved invisibly and unaccountably. Is there any way for the internet user to contest such regulation?

The DMCA says that if an ISP receives a ‘counter notice’ from a provider whose content has been removed, that ISP can only absolve itself of liability for wrongfully removing the content if it ‘replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days’ (28). This forces the rightsholder alleging infringement to then either drop their case or take it to court.

A similar model has been proposed in Europe by Richard Clayton of Thus plc (29). His ‘R4 system’ – ‘report, remove, respond and replace’ – is ‘intended to strike a balance from full immunity between placing complex burdens upon ISPs and providing for prompt responses to complaints that harm is being done’ (30). And at the ‘Notice and Takedown in Europe’ conference, RightsWatch spelt out its own elaborate mechanisms whereby if your content is removed from the internet, you can appeal the removal and defend your case (31).

Such schemas for a right of appeal by the content provider are well-intentioned. But because they are proposed within a framework of regulation by the marketplace, they suffer from treating the content provider as a customer with consumer rights rather than as a citizen with civil liberties. Even if ISPs notify content providers that content will be removed, even if there is scope for content providers to appeal against content removal, even if there are legal penalties for making false complaints to ISPs about internet content – the self-regulatory model still remains fundamentally biased against the content provider.

When a copyright dispute goes to court, the defendant usually has certain protections at their disposal. The defendant is usually assumed, to begin with at least, to be innocent – and it is up to the plaintiff to prove that copyright infringement has taken place. The presumption of innocence helps deter gratuitous claims of infringement, ensuring that the defendant is only penalised once their offence has been established.

But with a self-regulatory system, when a copyright holder notifies an ISP of copyright infringement, the complaint is automatically assumed to be legitimate, and it is then incumbent upon the content provider to prove that copyright infringement has not taken place. This leaves content providers in a position where they are perpetually on the defensive. No amount of exemptions and provisions in a system regulated by commercial interests can alter this fundamental bias.

Self-regulation by the industry of online copyright infringement means that the user’s experience of the internet is filtered through an international coterie of commercial interests. The low barrier to entry that allows anybody to publish on the internet becomes qualified by a constant threat of content removal. A medium that has the potential to be universal and democratic becomes neutered, harnessed to the stifling marketplace.

RightsWatch ‘is investigating the hypothesis that self-regulatory notice and takedown procedures can efficiently meet the needs and objectives of European stakeholders in the Internet environment’ (32). But there is little need to investigate such a hypothesis – because it is self-evidently true. Self-regulation is quicker and cheaper for companies than obtaining an emergency court injunction, and has the added advantage of avoiding the need to identify the offending content provider. Obviously, self-regulation ‘can efficiently meet the needs and objectives of European stakeholders’.

But there is more at stake in copyright regulation than efficiency. There is the question of justice. If big business plays the role of Libra while also sitting on one of her scales, then how can justice possibly be served? There is nobody more prejudiced in a copyright dispute, and therefore less qualified to set the terms of that dispute, than a copyright owner.

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)).

Read on:

Copyright and wrongs, by Chris Evans

Who owns ideas?, by Joe Kaplinsky

spiked-IT: four principles, by Sandy Starr and Helene Guldberg

(1) See the RightsWatch website

(2) About RightsWatch, on the RightsWatch website

(3) See the Fora section of the RightsWatch website

(4) See the Yahoo! US website

(5) See the Digital Millennium Copyright Act (.pdf 318 KB)

(6) See the WorldCom website

(7) See Notice and Takedown in Belgium (.pdf 176 KB), Peter Van Roste

(8) Cooperation protocol in order to combat illegal acts on the internet, on the Internet Service Providers Association Belgium website

(9) See the Motion Picture Association website

(10) Rightsholders who object to the courts tend to be motivated more by opportunism than by principled opinions about IP. At the same time as the Motion Picture Association raised objections to the courts at ‘Notice and Takedown in Europe’, its partner organisation the Motion Picture Association of America was launching an action against five organisations for online infringement of copyright – in a Los Angeles federal district court. See Net pirates turn sites on Hollywood, Duncan Campbell and Stuart Miller, Guardian, 23 February 2002

(11) Who owns ideas?, by Joe Kaplinsky

(12) See Defending the indefensible online and Not in front of the children?, by Sandy Starr

(13) The University of Florence in Italy. See the University of Florence website

(14) British Telecom (BT) and the Sweden-based Telia organisation. See the BT and Telia websites

(15) The Music Alliance (an operational venture between two UK licensing and collecting societies – the Mechanical Copyright Protection Society and the Performing Right Society), assisted by British Music Rights. See the Music Alliance, Mechanical Copyright Protection Society, Performing Right Society, and British Music Rights websites

(16) See the Fifth Framework Programme section of the CORDIS website

(17) ‘European self-regulatory hotline to address copyright protection on the net’, RightsWatch press release, 14 March 2001

(18) See the Diana Wallis website

(19) See Defending the indefensible online, by Sandy Starr; Two cheers for Yahoo!, by Sandy Starr; Censorware: be aware, by Alan Docherty; Dixon of dot com, by Brendan O’Neill; and Not in front of the children?, by Sandy Starr

(20) WIPO Copyright Treaty (1996) (.pdf 48.3 KB), Article 8, p4

(21) Digital Millennium Copyright Act (.pdf 318 KB), p20-21

(22) European Parliament and Council Directive on Certain Legal Aspects of Electronic Commerce in the Internal Market (2000/31/EC) (.pdf 104 KB), Article 14, p13

(23) DTI consultation on implementation of the Directive on Electronic Commerce, Department of Trade and Industry

(24) Workshop on Service Provider Liability (.pdf 221 KB), Kamiel Koelman and Bernt Hugenholtz, November 22 1999, p3

(25) See the Business Software Alliance website

(26) The Jippii Group. See the Jippii Group website

(27) ‘ISP software piracy case ends in Finland’, Newsbytes, 19 December 2001

(28) Digital Millennium Copyright Act (.pdf 318 KB), p23-24

(29) See the Thus plc website

(30) Judge and jury?: How ‘notice and takedown’ gives ISPs an unwanted role in applying the law to the internet (.pdf 56.8 KB), Richard Clayton, 26 July 2000

(31) Lessons from negotiations on the RightsWatch Pilot (.pdf 121 KB), Neil Gibbs and Richard Owens

(32) About RightsWatch, on the RightsWatch website