Comment by andrewla | Hacker News Reader

Comment by andrewla | Hacker News Reader

I am also nearly a free speech absolutist, but I feel that platforms like YouTube and FB are nearly in-scope. I can't specifically say what the criteria is, but there's some notion of how much responsibility they take for the content.

Something like the notion of a DMCA shield; where a platform can expose third-party content without consequences so long as they response to take-down requests means that they do not get to do filtering. If they get to do filtering and curation, then they are also directly responsible for copyright violations or libelous use of their platform -- the shield shouldn't apply unless it cuts both ways.

That is, by accepting some immunity from the consequences of free speech, they are then subject to free speech restrictions on their enforcement of their own opinions. A newspaper, for example, is not subject to the same restriction -- they are responsible for all content they publish, so can choose to publish or not publish whatever they want.

This isn't a precise framing, but I'm trying to capture some of my general thoughts on why I find it unappealing that YouTube and Facebook can filter out content that they deem offensive.

Facebook has a natural filtering mechanism through the ability for a user to restrict what they see. If you find content offensive, unfriend or block the person and you're done. Youtube can exercise some discretion in auto-play and recommendations, but they shouldn't be able to ban content unless they are required to do so by inheriting legal requirements.

Should anyone be forced to pay for someone else's speech that you don't agree with? Because that is what you're asking these companies to do.

I think the explosion of hate speech on the Internet is entirely because someone else is basically paying for people to post whatever they want. They don't need to create their own newspaper and get advertisers. They don't need to print signs. It's all free for them. You can consume as much services as you possibly can given your free time and those with more free time, therefore, get more free (as in beer) speech.

> Should anyone be forced to pay for someone else's speech that you don't agree with? Because that is what you're asking these companies to do.

If they are going to get the benefit of _not paying_ for speech that they would ordinarily be penalized for (libel, copyright infringement) then that's the cost, yes.

I think they should be able to impose arbitrary limits on the cost of serving content, either the size of the content or the bandwidth consumed by serving it, but by invoking any sort of copyright/libel safe harbor, they should lose their ability to curate based on content rather than metadata.

Sort of like being able to opt in to being a common carrier -- it carries both benefits (immunity from most criminal and civil prosecution for content served) and obligations (complying with takedowns and not discriminating based on content).

> If they are going to get the benefit of _not paying_ for speech that they would ordinarily be penalized for (libel, copyright infringement) then that's the cost, yes.

Why? That's an interesting statement, but I don't see how one follows from the other.

If you create a community online, should you not have some control over that community? Hacker News frequently censors and bans people in order to maintain a certain community. What if you created EverybodyBeNice.com that wants only "nice" posts? Is it not that fair that these companies can enforce their own standards while also getting protection from libel and copyright infringement made by their users? I don't think there is a good argument why one should be tied to the other.

I think arguing that every single website should be a common carrier takes that concept way too far.

> Why? That's an interesting statement, but I don't see how one follows from the other.

You're right, of course, I don't think there's a direct implication between the two. There's a difference of degree, not kind, to some extent. My intuition is that the value that YouTube derives from being a place where people can post videos (and, somewhat importantly, monetize them) is much higher than the value that HN derives from people posting content.

EverybodyBeNice.com is an interesting thought experiment. It wouldn't be very convincing, though, as a shield, if there was no effort put into active moderation not only for "niceness" but also for copyrighted or libelous content. The idea lives in that grey area between "completely curated content" and "just a place where people can post content". I guess my feeling, roughly, is that at some point during EverybodyBeNice.com's rise to serving billions of videos, they can no longer credibly claim that they are preserving the "niceness" unless there is some sort of review process that by its nature must also police for other kinds of illegitimate content.

> My intuition is that the value that YouTube derives from being a place where people can post videos (and, somewhat importantly, monetize them) is much higher than the value that HN derives from people posting content.

I don't see how "value" contributes to the argument. YouTube makes money showing videos to people that other people have posted. Hacker News makes no money linking to articles that other people have written and showing comments other people have written. But in neither case is there a moral or legal imperative to allow any video or post on either platform based on any concept of value. Value doesn't (and shouldn't) matter.

> It wouldn't be very convincing, though, as a shield, if there was no effort put into active moderation not only for "niceness" but also for copyrighted or libelous content.

If such a site did or did not moderate for niceness, copyright, and libelous content I don't think it matters. You can't assume perfect moderation and some mean comment, copyrighted content, or libel might get through. As long the site makes an effort when discovered to remove copyrighted and libelous content then they should be shielded by the law. Furthermore, I think that's morally acceptable. It's incredibly difficult to filter for niceness or copyright.

> The idea lives in that grey area between "completely curated content" and "just a place where people can post content".

There is no such thing as "just a place where people can post content" in the sense that you are going for. Every place is owned and controlled by someone. They have no moral obligation to allow any content. It's also perfectly reasonable for them to also be shielded from copyright and libel if they make a good faith attempt to remove it.

> There is no such thing as "just a place where people can post content" in the sense that you are going for.

It's a bit contrived, but the internet itself is such a place. I think it's widely accepted that the internet itself, and to some extent DNS, is a common carrier in the sense that it shouldn't be doing discrimination based on content, just on bandwidth. I mean, I don't want to start a whole net neutrality thing here, but a router or the operator of a router does not face any consequences for routing traffic, no matter how offensive or illegal that traffic is.

Web sites that are principally public repositories, where people can upload their content, seem to be a borderline case of that -- if they want to offload the risk of hosting the content, then they can do so, but it seems to me that they have to provide a service to society in return, namely, some sort of neutrality about the content posted.

I think it's equally reasonable to say that they should have no shielding at all -- society has no vested interest, necessarily, in allowing such a site to exist that has absolutely no say over what is posted on it. Allowing users to contribute to a site is fine so long as the site, in the end, bears the responsibilities for societal negatives associated with posting content (primarily libel and copyright, the two unambiguous restrictions on free speech).

> It's a bit contrived, but the internet itself is such a place.

The Internet isn't a place and that's what makes it a carrier. Just like the telephone system, the Internet connects you to other services.

Websites are not principally public repositories; they are privately owned services. If they allow you to post, that doesn't make it public in an ownership sense or carrier.

> If they want to offload the risk of hosting the content.

But they aren't. The law doesn't allow companies or individuals to get away with hosting copyright infringement. It simply makes it possible for companies that accept user uploaded content to function in any way as the alternative would make this impossible. That's all. Implying this requires a moral imperative to allow any content is a stretch at best.

> Should anyone be forced to pay for someone else's speech that you don't agree with?

Facebook isn't an "anyone" - it's a thing.

We can decide to do whatever we want to these things - they exist only because we permit them to. They have no natural rights.

I think that unless they are in a market-dominant position, or there's collusion between several players to effectively create a cartel that has that position, then there's more leeway.

But the ones that are - where their private rules have an extremely broad stifling effect that in practice makes it comparable to government censorship - should have very little leeway. I'd rather not allow such dominant positions in the first place (i.e. cap the size directly), but if we are doing that, it should come with strings attached - e.g. smaller companies get a choice between common carrier and curated platform with responsibility for everything, but something as big as Facebook is forced to be a common carrier.

DMCA is a United States law, isn't it? So what about mix-region content? What about content from a region in which the content is legal but it's not legal in the region from the person making the complaint?

I believe the DMCA's safe harbor provisions were adopted independently by most other jurisdictions, and there may even have been international treaties establishing some of the rules. Most sites are unlikely to contest take-down notices regardless of jurisdiction; that is incumbent on the party posting the content.

Article 13 is going to change this...

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