Don’t Make Least Effort Yet Another Privilege for Zuckerberg et al

Facebook-founder Mark Zuckerberg’s appearance in European Parliament last month raised many questions: Did he respond properly? Were the questions too friendly? Will a few thousand extra content screeners make any difference? And what about that selfie? Whatever your answers may be, one thing is clear: Zuckerberg is in trouble because his business has failed to take proper responsibility for its service. There has been plenty of fallout, in fact some call it a threat to democracy.

How did this happen? One part of the answer is the business philosophy embraced by some tech startups. Zuckerberg said it like this “Unless you’re breaking stuff, you aren’t moving fast enough”. (If you think that sounds like a misguided teen more than a global leader, I will agree!) But that’s not all, the other part is that we let him do it. That’s right, when making policy for the internet back in the 1990s, the politicians of that era – in their infinite wisdom – came up with the idea that internet companies should not be held accountable for what users do on their service. At least not as long as they would act on illegal activity when prompted. Some call this “safe harbor” but intermediary privilege may be more appropriate. This immunity may have made sense in those days when the concerns were around private communication and the internet was thought of as some kind of pipes anyway. Man, that backfired! This privilege is the root cause of all the problems that are obvious now: fake news, fake meds, disruption, surveillance, monopolies, abuse of power… What was once a protection of private communication has made the world’s biggest democracy tremble. Intermediary privilege makes possible everything from operating a global taxi service (without license) to unlimited video distribution (without license) to running child-trafficking sites (no such license).

It would be unfair to demand of the policy-makers in the 1990s to see this coming (in spite of their infinite wisdom!), but we can demand the policy-makers today at least do not repeat this mistake. And how could they? Well, actually they may be just about to. The EU Copyright Directive, being voted on today in the European Parliament’s legal committee. One part is a proposal for a new(!) immunity for internet platforms, as long as they make their “best effort” to stop copyright infringement. That’s right, a new privilege! It’s like we haven’t learned anything. Who can say how “best effort” can be twisted two decades from now? Making a new loophole doesn’t sound like a very smart idea.

What is best effort, anyway? The clearest example would be YouTube’s Content-ID system. The idea here is that rights-holders should put their videos into a database so that YouTube can match what users upload and check for infringement in copyright (this is what the pirates and so-called internet activists call “upload filters”). Sounds smart, right? Except it’s very easy to work-around. Put a legal video, like a movie trailer, on Youtube and add a link to a pirate-site where the whole movie can be found. Or put a frame around the video and Content-ID won’t find it. If this is the poster child, it’s not best effort. It’s least effort.