It may sound like a broken record (you can use that simile again thanks to the revival of vinyl record albums), but many digital platforms do little to diminish rampant IP theft on their services.
For example, the Los Angeles Times recently ran an expose describing the daunting challenges brand owners face on Amazon’s marketplace protecting their products from counterfeits. Whether large multinational corporations like Daimler and Apple or small American companies like phone-cord supplier Fuse Chicken, all risk losing business and suffering reputational harm because both authentic products and knockoffs are readily available on Amazon.
This dynamic is all too familiar to rights holders. Since the dawn of the Internet platform, companies have taken an indifferent (if not openly hostile) stance toward diminishing the flow of illegal content traversing their networks. The results are staggering. Google alone processes millions of takedown notices from copyright holders every day.
And they have every incentive to maintain this status quo. Internet platforms like Facebook and Google track users’ web activity, constructing detailed profiles of users’ online habits and then selling ad inventory based on those profiles. Historically, it has mattered little to platform companies what content users are accessing — as long as it helps drive data collection and provides content against which to display advertising.
The extent of data exploitation by these platforms makes the cautionary tale of 1984’s Big Brother seem quaint — a theme explored in the recently released documentary “The Creepy Line.”
However, lawmakers and the public have woken up to the consequences of the platforms’ business model. Consumers and users have watched with growing horror as terrorist propaganda, opioids, human trafficking, election meddling, theft, and more have exploded online.
In response, Internet platforms have staggered from one crisis to the next as lawmakers grow increasingly frustrated over the lack of cooperation they’re receiving — most outrageously demonstrated by Google’s recent refusal to appear before the Senate Intelligence Committee. Not exactly model corporate citizenship.
How did we get here? And how do we fix this? The answer to both involves what are known as “safe harbor” laws. Enacted in 1996 and 1998 respectively, Section 230 of the Communications Decency Act and Section 512 of the Digital Millennium Copyright Act immunize online platforms from liability for content on their services.
CDA 230 is why YouTube isn’t liable for jihadi recruitment videos on its site, and DMCA 512 is why creators must send the never-ending stream of takedown notices to Google referenced earlier. Collectively, they enshrine in law the oft-repeated claim by Silicon Valley executives that “we’re just neutral platforms” — a notion even Big Tech’s fiercest defenders now question.
These protections are unique to the Internet and remarkably broad. No other business in any other sector of the economy enjoys such broad immunities without any corresponding obligations.
In the real world, if a creator or innovator learns that a retailer is stocking and selling knockoffs of its copyrighted or patented work and notifies the seller, they must stop carrying the knockoffs. No such corresponding responsibility exists in the online world.
To address these problems, Congress should consider narrowing the safe harbor laws that shield platforms from accountability for all the illegal and unsavory conduct they facilitate and profit from.
For instance, Conservatives for Property Rights recommended in a recent white paper amending the DMCA to “[r]equire Internet platforms to keep infringing content from reappearing on their services once notified of its existence.”
And to address non-IP-related Internet harms — like viewpoint discrimination — London Center for Policy Research and American Conservative Union Senior Fellows Bruce Abramson and Jeff Ballabon argued in favor of repealing CDA 230 saying: “Life on the Internet should not be an exemption from responsibility.”
Bottom line, it’s time for a reality check: Trust is earned. Business practices must be responsible and lawful. Accountability is imperative. If dominant Internet platforms refuse to do more to protect IP and the rule of law, then Congress must act.
James Edwards is executive director of Conservatives for Property Rights.
