In recent months, some copyright holders, pharmaceutical companies, and state attorneys general have made allegations against Internet companies that help users find and share information. In short, they claim that because some users engage in copyright infringement, sell counterfeit products, or otherwise encourage potentially criminal activity on the Internet, the users’ Internet platforms should be held responsible for these misdeeds. That is, Google should be punished for any user’s copyright infringement on YouTube, Facebook for any user’s harassing post, and Twitter for any user’s slanderous tweet. According to the critics, that is, these companies should screen all users’ speech and take on the role of editors or publishers, rather than being open platforms for the speech of millions.
Many of these allegations focus exclusively on the biggest company in the space, Google, even though Google already invests considerable resources in reducing infringement, counterfeiting, and unlawful activity on its platforms. One state attorney general accused Google of “a failure to stop illegal sites from selling stolen intellectual property,” as though Google has the obligation or even the ability to stamp out copyright infringement on every “site” on the Internet.
For those who follow Internet policy, these types of arguments should sound familiar, stale, and still misguided. These arguments have failed repeatedly in federal courts, Congress, and the court of public opinion. One wonders why, like zombies in a classic horror movie, these arguments just keep coming back from the dead.
As recently as 2011, some in Congress supported a now-infamous bill called SOPA designed to target Internet intermediaries for their users’ copyright misdeeds. SOPA’s co-sponsors also targeted Google and similarly served on committees focused on intellectual property—committees that often show an unbalanced attentiveness to the copyright industry’s concerns over those of average users and over important principles of free speech more generally.
To ensure digital platforms for user expression, Congress has wisely held that speech platforms should generally not be guilty of their users’ misdeed. Congress has done so through established and widely praised laws such as section 230 of the Communications Decency Act and Section 512 of the Digital Millennium Copyright Act. Courts have construed 230 of the CDA “broadly in all cases arising from the publication of user-generated content.”
Nonetheless, every few years, we see attempts to undermine intermediary immunity. While many such attempts might be well-intentioned they are deeply flawed and would threaten the Internet’s role as an engine of free expression for hundreds of millions of Americans.
In this post, I respond to the recent allegations by rights-holders and state attorneys general. These critics mistakenly accuse companies of turning a blind eye to users’ potentially illegal behavior on search engines and video platforms. They also advance legal claims that technology platforms should be liable for any abuse on any of its services, despite a lack of support for such claims in the case law (and considerable support for the opposite position). As many of these arguments are specific to Google, I reply to those arguments and explain how my responses apply more broadly to other Internet companies.