ARL Policy Notes
A court case that threatens the Net as we know it.

image courtesy Mr. T in DC via CC license.

The Internet we know and love—the one that lets anybody use any device to browse any site and send or receive any information they want—is under near-constant threat these days. The problems are familiar: ACTA, attacks on neutrality, and efforts to ratchet up IP enforcement to the exclusion of free expression and access are just the ones that come immediately to mind. But the greatest existential threat to the Internet today may well be the case made by Viacom in its lawsuit against YouTube.

The Digital Millenium Copyright Act did some serious damage to digital freedom when it added legal protection to digital locks (i.e. DRM, “technical protection measures,” etc.), but it also established a vital safe harbor for online service providers like YouTube, Craigslist, and any other service that allows normal people to publish and transmit things on the Internet. In a nutshell, the DMCA says that service providers are not responsible for what their users do online in most ordinary circumstances. Without this rule, no one would create the sites (like Facebook, YouTube, Flickr, Twitter, and on and on) that make the Web a place where we can all contribute, rather than a place where we passively consume what’s been posted by big conglomerates. Perhaps that vision of life without the safe harbors explains Viacom’s willingness to dismantle them.

Viacom has sued YouTube over some of the user-posted content on its site, and it claims that YouTube cannot seek shelter under the DMCA’s protection unless it implements intrusive filtering technology to police their networks on behalf of content owners. If the court endorses Viacom’s arguments, there will be almost nothing left of the DMCA safe harbors—nowhere for service providers to hide from angry rightsholders looking for deeper pockets than those of most ordinary users. The Net as we know it simply could not exist in such a legal environment.

To help the judge understand these grave consequences, ARL (together with ALA, ACRL, CDT, CCIA, and several others) joined the Electonic Frontier Foundation’s excellent amicus brief defending the Internet and the safe harbors that make the Net an interesting and democratic platform. Many thanks to the very talented folks at EFF for drafting an excellent set of arguments.

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