miércoles, 7 de septiembre de 2016

The end of the "mere conduit" principle (II)

Some months ago, I wrote about the foreseeable review of the "mere conduit" principle that we were bound to attend in 2016. To cut a history short, since the origin of the commercial Internet around 2000 hosting providers have not been liable of the storage of an illegal content as long as they do not have knowledge of its illegality. In Europe, the principle is enshrined in the E-Commerce directive. The time for the legal review of this principle has effectively come.

On one hand, the recent wave of terrorism in Europe has provoked an analysis of the role of social media as a tool for spreading the extremism and hate. Since the beginning of the year, both governments from America and Europe have required the help from Silicon Valley to fight against online terrorism propaganda. Although, the social media companies have disseminated their efforts, some policy-makers are not fully happy with the state of things. The measures taken by the social media companies are based in voluntary collaboration and in UK some voices in the Parliament are calling for the strenghtening of the obligation to collaborate. This could imply more legal liabilities for digital platforms regarding the terrorism apology and extremist contents.

On the other hand, there are also voices calling for a different distribution of Internet content revenues. Due to the "mere conduit" principle, the digital platforms have obtained revenues for the publication of links and contents with few responsibility on the legality of them from a copyright perspective. However, again in a voluntary basis, digital platforms introduce measures to to ensure the functioning” of the agreements with rightsholders, like the ContentID in youtube. This relationship model looks it will be reviewed in the forthcoming overhauling of copyright rules in Europe. Again it seems that the voluntary agreements between digital platforms and rightholders would end to pave the way to obligatory agreements.

Of course, the GAFA (Google, Apple, Facebook, Amazon) are against these movements calling for maintaining the voluntary scheme for the sake of innovation. But this time, even in the USA , are some movements against maintaining the "mere conduit" principle interpretation as it is interpreted today. The US courts have found that an Internet provider was liable for the alleged copyright infringement carried out by its customers. This could be a precedent to be extended to the digital platforms.

So it looks that we are really walking towards a reinterpretation of the "mere conduit" principle. This would create a new balance of the economic power within the internet value chain and surely the end of the Internet as we know.


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