"Notice-And-Stay-Down" Is Really "Filter-Everything"
eff.org
eff.org
Reasonable people could debate what form a safe harbor should take, though.
Big content sharing sites are only possible, in their current form, because they use technology to enable scaling in terms of both content distribution and advertising revenue generation.
Big content sharing sites often do facilitate illegal activity on a huge scale. Plenty of them got start doing so more-or-less overtly.
Big content sharing sites often do make a huge amount of money.
It is not obvious that big content sharing sites should be magically exempted from the rules about redistributing copyrighted content that everyone else has to follow, just because their business models don't work otherwise. Yes, it's difficult to determine reliably whether some untrusted third party's content might be infringing or not. Yes, it's expensive to screen content you're going to share before you share it. These things are difficult and expensive for everyone else, too, but we don't all get to excuse ourselves from following the law.
Even if we accept that having big content sharing sites is generally a positive thing, and we therefore decide to provide a safe harbor mechanism to limit their exposure if users abuse their system, that doesn't mean we should absolve them of all responsibility for illegal acts committed using their systems and from which they may profit handsomely through indirect means like advertising. Nor does it mean we should absolve users of responsibility for sharing copyrighted work using sites that can attract audiences in the millions within a matter of days or even hours, just because it's done at arm's length and "everyone is doing it".
So personally, I'm not sure I have a problem with the general principle of a notice-and-stay-down rule here. Certainly takedown procedures on big content sharing sites have been abused, but just as certainly there are vastly more infringing copies being shared that way without penalty to the lawbreaker than there are non-infringing copies being taken down even though they were fair use or the equivalent, and the ability for anyone to sign up for another account and re-upload the same infringing content moments after it is taken down is a gaping hole in the credibility of the existing takedown framework.
If someone wants to share content and exercise their freedom of expression, they can still publish that material directly on their own system, without relying on the support of any third party content sharing service. But they'll also then have to take direct responsibility for the consequences if that what they do is illegal.
That is not a practical solution and an unfair burden. Most people do not have that option at all. They don't know how to do it themselves and they can't afford to pay others. Aggregating many users makes publishing affordable to many and the filter-always rule goes a long way towards making that impossible.
As opposed to the law turning a blind eye to tools that facilitate illegal activity on a massive scale, while requiring everyone actually holding the relevant legal rights to take individual action against every infringement themselves, even in the face of blatant and repeated infringement by the same people using the same mass distribution service?
If you want to talk about impractical solutions and unfair burdens, talk to any small-scale, independent content producer who's seen something they worked on for months shared on-line and watched their profits evaporate. Not everyone in the content ecosystem is making big hits like Game of Thrones or the latest Taylor Swift single and at least benefitting from some extra exposure leading to more people buying the content with real money later as well as losing out to pirates who won't. Not everyone in the content ecosystem has full-time in-house legal staff to chase down infringers, nor the resources to actively monitor every major content sharing service 24/7 to intercept large-scale illegal redistribution in near real time.
Most people do not have that option at all.
Anyone who is on the Internet in the first place has that option. You can have control of your own web site for a fraction of the cost of a monthly ISP subscription, and you can learn to do it with a few minutes on Google, the help provided by your chosen hosting service, or asking your neighbour's 15 year old kid.
Aggregating many users makes publishing affordable to many and the filter-always rule goes a long way towards making that impossible.
Aggregating many users makes publishing affordable to those who want to benefit from publishing but spend literally nothing on it. Even if you have freedom of expression protected by law to some extent, that doesn't mean you're entitled to have someone provide you with a mechanism for expressing yourself to a huge audience, free of charge.
For example, YouTube is free to take down any video they like for any reason they like on their own service, regardless of whether or not any law actually requires them to do so. It's their service. If you really believe in promoting free expression, surely you should be in favour of more people publishing independently and under their own control?
In any case, you're dramatically overstating the effect of the filter-always rule as I understand it. From the description given in the article, it appears that the rule just says if someone has formally complained about a copyright infringement under the safe harbor system, and that complaint has not been disputed and therefore presumably the original copy has been taken down, then the same rightsholder does not have to keep formally complaining about the exact same material if it's uploaded again after being taken down the first time.
I don't see how this stops anyone from publishing anything, unless it's already been published, and that has been challenged, and the person who published it has not exercised their right to dispute the allegation of infringement. And the extra burden here is primarily on the hosting service, which is usually the huge beneficiary of safe harbor agreements already and still bearing far less burden than they otherwise would under the law.
How is any of this unreasonable, assuming a fundamental desire to reconcile freedom of expression with the legitimate interests of copyright holders that are recognised and protected by law in as fair a way as possible?