Time to Close Safe Harbor

Last month marked 20 years since President Bill Clinton signed the Digital Millennium Copyright Act (DMCA) into law which introduced “Safe Harbor” for Internet Service Providers. In combination with the Telecommunications Act of 1996, it meant that YouTube, Facebook, Twitter, Gab or Instagram later could not be held liable for any content posted on their platforms. In due time, Europe followed the U.S. lead in giving these companies the same Safe Harbor liability protection.

The aim behind the revision is to allow rights holders to negotiate and be remunerated for the use of their content by tech companies.

Now on both sides of the Atlantic regulators are re-examining the wisdom of these laws. This time the EU is taking the lead by revising its Copyright Directive. Meanwhile Google is using all its power to spread disinformation that this law will “break the internet”.

Recently, the CEO of YouTube Susan Wojcicki published an opinion piece claiming that the “creator economy” is under threat because of the EU’s efforts. To creators, re-branding the problems YouTube has caused sounded more like intimidation than concern about the future of creation.

Ms Wojcicki’s claim was quickly dispelled by the European Commission, who explained that the new rules will in no way target YouTube or other platform users. The aim behind the revision is to allow rights holders to negotiate and be remunerated for the use of their content by tech companies.

The “creator economy” is not under threat by Article 13, as Ms Wojcicki claims.

The “creator economy” is not under threat by Article 13, as Ms Wojcicki claims.

It is instead under threat from the Google and Facebook’s monopoly – both companies own 88 cents of every dollar spent on advertising in the US. YouTube financially profits in the form of advertisements from providing access to copyright protected content, while strong-arming rights holders into submission.

Ms Wojcicki proudly declared that YouTube paid content owners across the EU more than €800m. Sounds impressive, but it’s a tiny fraction of the value Google extracts by exploiting other people’s works. In 2017 alone, Google brought in $110 billion in revenue. 84% of that was ad revenue. It made $ 12.7 billion in profit. Currently for one million clicks on Apple’s music platform, artists get $900,000, while for the same amount of views on YouTube, they currently get only $900!

YouTube says to musicians “Your music is going to be on YouTube, whether you want it or not.” Sure, you can file a ‘takedown notice.’ About 2 million per day are filed against Google and YouTube. But within days the song will be back up from another user. Because of the privilege of YouTube to enjoy Safe Harbor, they are under no obligation to keep your song off of YouTube even though they have the tools to do just that.

Google’s YouTube platform has been the largest purveyor of hate speech, neo-Nazi music videos, and Jihadi propaganda. It also has wrecked the livelihood of many musical artists. But not only have the unregulated social networks provided a platform for hate and terrorism, they have also destroyed the business models of both journalism and entertainment. We have to acknowledge that social networks as they are currently configured and regulated represent a cancer on our society.

We need to make platforms responsible for the content on their networks. It’s time to close the Safe Harbor.

The EU is currently examining the responsibility of the digital platforms in both the areas of copyright fairness and their damage to democracy. The EU should be able to declare that Google, YouTube, Facebook and Amazon are no longer protected by Safe Harbor, as they are not “neutral platforms”.

YouTube would have to make the same kind of licensing agreement with music companies that Apple Music and Spotify have. Facebook would have to screen their content for defamation, invasion of privacy, false light, and public disclosure of private facts. Newspapers would have some leverage to get paid by the platforms that display their content. Much of the fake news epidemic would be curtailed. We cannot wait for the platform monopolies to ‘self-regulate’.

We need to make platforms responsible for the content on their networks. It’s time to close the Safe Harbor.

Jonathan Taplin, former tour manager for Bob Dylan and The Band and film producer for Martin Scorsese, Wim Wenders and Gus Van Sant.  Author of the book Move Fast and Break Things: How Google, Facebook and Amazon Cornered Culture and Undermined Democracy. You can tweet him @JonathanTaplin

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  1. I don’t believe you at all ! But you are very good at propaganda, lies, manipulation of statistics,…

  2. Barbie De Facto

    Finally someone writes this article! Thank you!! This is very clear and held my attention.

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