Opting Out of the Internet in the United States and the European Union: Copyright and Safe Harbors

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In this talk, Hannibal Travis will describe the legal and human rights implications of efforts by copyright owners such to ‘opt out’ of the Internet in general, and out of Web 2.0 sites in particular.

Copyright owners, particularly music and motion picture producers, are instituting litigation and seeking legislative or regulatory reform measures in an effort to force software and Internet companies to monitor for and technologically filter out any quotations or clips of copyrighted work on the Internet. The copyright holders would like to see the Internet companies ensure that a copyright holder affirmatively opts in with a written license agreement before any aspect of copyrighted work is reproduced on a given site.

Software and Internet companies invoke limitations on copyright, including the safe harbors of the Digital Millennium Copyright Act and European Community Electronic Commerce Directive, to argue that copyright owners must wait until the infringement occurs, identify the location of specific infringing files on the Internet with adequate detail to enable Internet companies to investigate allegations of infringement, and only in the absence of an expeditious response sue the Internet company for contributing to the infringement.

Hannibal’s sense is that this latter, ‘opt out’ framework, will better preserve technological innovation and freedom of expression than would an ‘opt in’ system, which would establish copyright holders and Internet companies as more intrusive filters of Internet users’ speech. He traces the development of ‘Web 2.0’ services such as YouTube and Wikipedia, and the difficulty they would have under an opt-in regime without safe harbors.

He then summarizes the case law in the US on opting out of the Internet, from the early cases in which courts discovered that safe harbors were necessary to preserve the innovative and speech-enhancing aspects of the Internet and file-sharing software, to the more recent judicial consensus in the United States and Europe that tends to shield online intermediaries from liability as long as they do not purposefully disregard opt-outs that identify specific infringing content, in cases involving Google, Veoh, Yahoo!, and Visa.

He also discusses contrary authority in support of an opt-in system, including the rulings of the French courts in the Dailymotion and MySpace cases, and of a Belgian court in the Google News case