Heavyweight Battlebots in the Clouds: The Wrong Incentives and Poorly Crafted Balances that Lead to the Blocking of Information Online
Posted: 1 Oct 2012
Date Written: October 1, 2012
In the article entitled Intermediaries Precarious Balance within Europe: Oddly Placed Cooperative Burdens in the Online World, I examined the Court of Justice of the European Union case of SABAM v Scarlet Extended in which the court interpreted various European Union laws to require a cooperative balance between intellectual property right holders and internet service providers in the protection of online intellectual property rights. The courts proscribed balance, however, is an odd one as it has not been appropriately delineated and has little real means of preventing large scale copyright infringement in the online world. In fact, the proscribed cooperative balance is so poorly delineated that the law incentivizes service providers to behave as quasi-governmental internet policing copyrights agents. The pressure to avoid liability and court ordered website shut downs is so significant that the service providers are embracing the use of systems which error on the side of caution and consequently, over identify and over capture material without any due process or protections for those that have appropriately used, posted or streamed the online material. Unfortunately, the situation arising from the use of this technology has reached a tipping point as the recently publicized incidents involving the Hugo Awards ceremony and the Democratic National Convention highlight. In both of these instances digital technology bots incorrectly identified material and in response to the tagging of the video denied web users access to a fully authorized video stream.Consequently, it has become a matter of urgency that we reconsider the creation of a cooperative policing burden in the online world as the law has created incentives to embrace the use of technology that is not yet ready for wide scale use.
This paper will consider the incentives created under the law for service providers to over-protect intellectual property rights. In light of these incentives, the paper will then consider the creation of an appropriate balance between stakeholders within the online world, one which re-evaluates the priority given to right holders and instead truly balances the burden of protecting intellectual property in the online world. Finally, the paper will suggest that the law must be reconsidered in light of the new technologies being employed by ISP and intellectual property right holders in an effort to combat online piracy but at the expense of individual users.
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