Repeating the Same Action for a Different Outcome

The drama around Facebook and Zuckerberg’s congressional hearing was the most exciting show in town last week. But what got us into this mess in the first place? Sure, Facebook started as a frat boy project to peek at girls (which turned out to be quite popular). But it is the idea that the internet is special and should be held to a different set or rules that underpins Facebook’s operations. News publishers would not get away with spreading propaganda from foreign countries, no member club could sell details about their members income and home address to a third party (let alone their holiday photos!). By no means limited to Facebook. The clearest legal incarnation of this idea is the various flavors of intermediary immunity, a privilege that lets business models built around circumventing rules masquerade as technological innovation. Thus, Uber can run a taxi business without licensed drivers and broadband carriers can look the other way when users access pirate services. Finally, this internet exceptionalism is beginning to crumble. Uber is being sued by city governments, broadband carriers compelled by the courts to restrict access to illegal services, the European legislator getting tough on internet platforms and, yes, Zuckerberg reluctantly admitting to Congress that some kind of regulation is needed (except it has to be the “right kind” whatever that means!). So the world is waking up to the fact that the internet needs to play by rules or the big boys will call all the shots. Great news and an opportunity to improve on the digital world.

Except it appears that this insight is missing from other parts of European legislation being brought forward. For all the talk of suing companies for X% of global turn-over, the European legislator is set to repeat the mistake that got us here in the first place: intermediary privilege. That’s right, in the proposed Copyright Directive, there are a number of new immunities proposed for internet intermediaries would you believe it. One is for user generated content, another is exceptions from the “communication to the public” (the legal basis for liability in content distribution). Restrictions on what works are covered by the intermediaries’ responsibilities. Language like “fair and balanced” license agreements which in practice means that the creators are responsible for policing a myriad of internet services to find their content, ask for it to be removed and cross fingers it is not re-uploaded the next instant. That is reverse licensing, the actual rule is get consent first, then post. This list of examples can be made very long. What started as a promising attempt to create a better online market for content is now slowly morphing into something like the Silicon Valley Xmas gift wishlist. Putting more immunities and liability privileges in place is going the wrong way. It would be repeating exactly what put us in this mess in the first place. The names will be different, but the problems the same.

What is it they say about repeating the same action and hoping for a different outcome?

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