More Intermediary Liability, Fewer Checks and Balances


More Intermediary Liability, Fewer Checks and Balances

THE INTERNET HAS a lot of intermediaries. At present, treaties like the WCT focus on controlling one class of middlemen: web hosts, be they cloud-computing providers, file lockers, video hosts, or social-media services. Their liability is limited as long as they’re willing to respond to a takedown notice. Beyond that, intermediaries aren’t required to police their customers’ uploads.

What the entertainment lobby wants is to expand which intermediaries are liable for their role in an infringement, and what responsibilities intermediaries have when it comes to proactively policing their services. So who are they targeting?

Hosting providers and other online service providers: These are the companies that currently operate under the Notice and Takedown rules. Under agreements like SOPA, PIPA, and the TPP, online service providers from Facebook to YouTube to Twitter to Tumblr would become more like cable companies—they’d be responsible for ensuring that nothing infringing is posted to their services in the first place, rather than merely being required to respond to notices from rightsholders about infringement.

Linkers: Under SOPA and PIPA rules, any site that hosts a link to another site that links to infringing content would be a party to that infringement. That means that if, say, Facebook published a user’s link to a website that itself contained links to infringing content, Facebook could be sued.

ISPs: Currently, the companies that connect you to the Internet have very little liability for your actions. If you use your home DSL or your office network to send an infringing file from A to B, the people who hooked you up to the Internet are not a party to your actions, as long as they satisfy some minimal formal requirements. But under a series of proposals with names like “Three Strikes,” “Notice and Termination,” and “Graduated Response,” ISPs would have the legal obligation to disconnect customers who generate copyright-infringement complaints. France’s Hadopi law and New Zealand’s Copyright Amendment Act 2011 were the pioneers here—in both countries, users were threatened with total disconnection from the Internet for a prolonged period on the basis of unproven accusations of infringement. (Thus far, punishment under the laws has been limited to fines.)

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