How Third Party Liability Can Stifle An Industry
from the things-we-don't-want dept
The entertainment industry has been pushing really hard for greater secondary liability for third parties, lately — hoping to roll back some of the vastly important safe harbors found in both the DMCA and Section 230 of the CDA. Both of those safe harbors (though, they work in different ways) are designed to make sure that liability is properly applied towards the party that actually broke the law. Secondary liability is a dangerous concept that applies the liability to a third party because it’s difficult to find the actual perpetrator. But, in what world does it make sense for you to blame an innocent bystander just because it’s hard to find the actual person responsible?
The consequences of secondary liability (both intended and unintended) are incredibly dangerous for both free speech and for the ability to create new and useful services online. We’ve already seen how the Chinese have taken secondary liability to a new level by using it as the core mechanism for censorship. But still the entertainment industry pushes forward.
They should be careful what they wish for. An article in the Times Online highlights the situation in Ireland, where there aren’t safe harbors against secondary liability for defamation — and it’s leading internet companies to blatantly censor or to avoid doing business in Ireland out of fear for the liability. Now, some in the entertainment industry seem to think this is just fine — because they think that the internet should be a broadcast medium for the big “professional” producers of content, and all these internet companies and user-generated content things should really all fade away.
But for people who recognize that freedom of communication online is important, and who recognize that third parties who create services should not be blamed for their misuse by users, this should be quite troubling. Trying to increase secondary liability on service providers through things like ACTA is an attempt to strip away basic legal common sense in the proper application of liability, in an effort to crowd out new online services, in favor of old school broadcast entertainment firms.