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

Document Type

Article

Publication Date

2008

Abstract

This Article analyzes 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. I argue that courts and legislatures should reject the argument by copyright owners that absent a license agreement respecting a copyrighted work, technology and Internet companies should be forced to monitor for and technologically filter out any quotations or clips on their sites unless a copyright owner affirmatively "opts in" to being included on a given site. Instead of this type of an "opt-in" framework, judges and policymakers should permit Internet companies to respond to allegations of infringement by removing offending files from their sites, and should require copyright owners to identify the location of specific infringing files on the Internet with adequate detail to enable Internet companies to investigate allegations of infringement. This "opt out" framework will better preserve technological innovation and freedom of expression than would a system, which would establish copyright holders and Internet companies as more intrusive filters of Internet users' speech.

I briefly describe the development of "Web 2.0" services such as YouTube and Wikipedia, and the complex intellectual property issues that they engender. I then summarize the case law in the U.S. on opting out of the Internet, from the early cases in which courts struggled with the possibility that copyright law would chill the development of online services, to the more recent judicial consensus shielding online intermediaries from liability as long as they do not purposefully disregard opt-outs that identify specific infringing content, in cases such as Perfect 10 v. Google (9th Cir. 2007), Perfect 10 v. Visa (9th Cir. 2007), and Parker v. Google (3d Cir. 2007). My distinctive contribution to the field consists in showing that European courts have erected a similar knowledge-based opt-out framework for online intermediaries such as Internet service providers, creators of peer-to-peer file sharing software, and user-generated content platforms. Some cases have bucked this trend, of course, notably such as the Google News case in Belgium have bucked this trend. The court's ruling in that case would do untold damage to freedom of expression and the process of Web-enabled innovation, as would the similar rulings of the French courts in the Dailymotion and MySpace cases. If such cases become the norm, Internet companies will scramble to reduce user freedom so as to block infringing uploads.

Many European courts base their rulings on the European Community's Electronic Commerce Directive of 2000, which provides that storing or "hosting" information provided by users does not give rise to monetary liability if an Internet company does not control the user and either does not have actual knowledge of infringement or expeditiously removes the infringing material upon becoming aware of its presence on the site. The developing consensus of the European courts resembles the celebrated ruling in Kelly v. Arriba Soft (9th Cir. 2003) that reproducing copyrighted work in order to improve access to information over the Internet constitutes a fair use, and that respecting clear opt-outs is evidence of a lack of intent to disregard the copyrights of others. Moreover, I address, and rebut, the common objection that international copyright treaties, and specifically the minimum level of copyright protection required by the Berne Convention and GATT-TRIPs agreement, preclude the establishment of an opt-out regime for copyright disputes. Finally, I discuss the implications of these findings for currently pending cases that will define the future of Web and Web 2.0 services such as digital libraries and online video sites. Search engines and hosting sites for books, news, and videos are the focus of this section.

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