The EU’s aggressive enactment of legislation affecting Big Tech may change the Internet in many ways, especially for Europe.  One piece of recent legislation in particular may have a profound impact on average users of popular Internet platforms.

In April of 2019, the EU passed a Directive on Copyright and Related Rights in the Digital Single Market (the “DSM Directive”).  There are significant unanswered questions about what will be the practical effect of this legislation, and whether it will change the Internet in profound ways by preventing users from posting content of the type that has been allowed for decades.

Article 17 of the DSM Directive fundamentally modifies the safe harbor that has protected platforms from liability for copyright infringement claims since the 1990’s.  Under previous law, both in Europe and the U.S., platforms were viewed as mere "conduits", and enjoyed immunity from copyright infringement as long as they complied with takedown protocols if and when they were notified that their users have posted materials that violated copyright protections.  The new DSM Directive places a burden on large platforms to use “best efforts” to assure the unauthorized postings of copyrighted materials do not infringe on the rights of those who created the materials.

It appears evident to many that the new obligation to police copyright infringement at the outset will mean that platforms will need to implement filtering software designed to prevent infringing materials to be posted by users in the first instance. While in practice this might sound like a good idea at first blush, the reality is that it will be difficult to develop filtering software that will not filter out content that is not infringing - including content that is subject to fundamental free speech protections enshrined in the US Constitution and EU Treaties.

A major exception that allows for the use of copyrighted materials exists for “fair use”  (called “legitimate use” under EU law), which allows use of copyrighted materials for purposes such as quotation, criticism, review, caricature, parody, education, and pastiche.  Any determination as to whether such exceptions apply calls for a case-by-case analysis and a measure of human judgment, tasks for which current filtering software is not adept.   For example, an internet user who attempts to post a YouTube video that contains a copyrighted Disney character like Donald Duck to make a point about a similarly named politician may find that his or her attempt to post has been rejected by filtering software.  This could occur, even though the posted material falls within a fair use category like parody, criticism or political discourse.  Under the DSM Directive, the person attempting to post the material would then have the burden of petitioning to have the platform undertake human review to allow the posting.

The DSM Directive is only now being implemented to the point where it will have an impact on the Internet. It will be interesting to see how large platforms like YouTube, Facebook. TikTok and Instagram attempt to comply.  If they choose to under-filter content, and thereby continue to tolerate a certain amount of copyright infringement, they will run the risk of being sued by content creators who now have a new and powerful tool to seek damages from deep pocket defendants.  If large platforms choose to over-filter content, then they run the risk of alienating their users who will become frustrated by the fact that they cannot freely post material that is not infringing and, consequently, feel that their freedom of speech has been curtailed.

This topic likely will be the subject of continuing discussion in future posts on this blog. I would be interested in hearing from any readers who have experienced rejection of attempts to post “fair use” materials on the Internet.