THE BLOG
01/21/2016 08:13 am ET | Updated Jan 19, 2017

Content Filtering Would Hurt Free Speech and Innovation

This week marks the four year anniversary of the largest online protest in history, when 75,000 websites and 15 million users protested legislation supported by the entertainment industry that threatened freedom of expression online.

Defeating the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) - products of the entertainment industry's intense and well-financed lobbying campaign - was a watershed victory for consumers, free speech and technology innovation. But the fight is not yet over.

Four years later, innovation and creativity are still under attack by the same well-funded interests. After failing to persuade Congress to pass SOPA and PIPA, they are now targeting different entities and state legislatures, government agencies, the courts, ICANN, the European Union and international treaties - these are just some of their chosen venues. But neither their misguided demands nor the potentially disastrous consequences have changed. The implementation of excessive and over-broad intellectual property protection measures would strangle the freedom and innovation essential to growth of the Internet.

The most threatening assault on free expression and free enterprise online is their effort to enact content filtering in the U.S. and Europe, which a smart public relations campaign is re-branding as "notice and staydown". This would revise the "notice and takedown" process in the Digital Millennium Copyright Act (DMCA) and replace it with a far more potent and injurious provision that would require online platforms to proactively filter content on the web.

Today, under the DMCA's safe harbors, online platforms remove Internet content, such as blog posts, videos and tweets, in response to copyright holder complaints. Services are not expected to affirmatively suppress copyrighted works, in part because virtually everything on the web is copyrighted. In addition, a website has no way of knowing whether a particular use of a work is authorized by the rights holder or is being used legally under fair use, which permits use of copyrighted material under certain circumstances. This current system allows for rights holders to control the distribution and use of their works online, but also allows for free expression, remixing and fair use. This careful balance has allowed creativity and innovation to flourish on the Internet today.

The content filtering proposed by advocates of a "notice and staydown" system would impose an undue burden on platforms of all types and would severely limit new and emerging forms of creativity. Not only would it require a platform to monitor and automatically remove all future instances of the identified work, but it would also require the platform to single-handedly determine each time whether a use is infringing, licensed, or protected under the exceptions and limitations in copyright law. It is clear that this type of system would chill perfectly legal speech and creativity on the web.

Such a fundamental change to a bedrock principle of American jurisprudence would also have absurd consequences. Imagine a world where just the mere allegation of infringement would permanently keep that content down. This would have huge implications for everyone when it comes to sharing a video on Facebook or quoting song lyrics. That's because social media networks would be forced to suppress user generated content, as they would not know if it was licensed or not. Parents can forget posting videos of their kids dancing to music and candidates would not be able to post campaign speeches because of the music that plays in the background. Remix culture and fan fiction would likely disappear from our creative discourse. Live video streaming sites would cease to exist. Notice and staydown might seem innocuous, but in reality it is content filtering without due process.

The damage that content filtering would inflict on Internet freedom and the revolutionary idea of a single, global, open digital network would be worse than the damage threatened by SOPA's provisions. Let's use the fourth anniversary of this historic online protest as a reminder to remain vigilant in the face of these new threats to our rights and opportunities, and continue making the Internet age a golden age of creativity, prosperity and self expression.