User Patronage: The Return of the Gift in the “Crowd Society”

Article published in the Michigan State Law Review

Reforming Intermediary Liability in the Platform Economy: A European Digital Single Market Strategy

Since the enactment of the first safe harbours and liability exemptions for online intermediaries, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging Internet market. Do safe harbours for online intermediaries still serve innovation? Should they be limited or expanded? These critical questions—often tainted by protectionist concerns—define the present intermediary liability conundrum. Apparently, safe harbours still hold, although secondary liability is on the rise. As part of its Digital Single Market Strategy, the European Commission would like to introduce sectorial legislation that would de facto erode liability exemptions for online intermediaries, especially platforms. Under the assumption of closing a “value gap” between rightholders and online platforms allegedly exploiting protected content, the proposal would implement filtering obligations for intermediaries and introduce neighbouring rights for online uses of press publications. Meanwhile, an upcoming revision of the Audio-visual Media Services Directive would ask platforms to put in place measures to protect minors from harmful content and to protect everyone from incitement to hatred. Finally, the EU Digital Single Market Strategy has endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. This paper would like to contextualize the recent EU reform proposal within a broader move towards turning online intermediaries into Internet police. This narrative builds exclusively upon governmental or content industry assumptions, rather than empirical evidence. Also, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. Apparently, the European Commission aligns its strategy for online platforms to a globalized, ongoing move towards privatization of enforcement online through algorithmic tools. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention to police allegedly infringing activities in the Internet

Rediscovering Cumulative Creativity From the Oral Formulaic Tradition to Digital Remix: Can I Get a Witness?, 13 J. Marshall Rev. Intell. Prop. L. 341 (2014)

For most of human history, the essential nature of creativity was understood to be cumulative and collective. This notion has been largely forgotten by modern policies that regulate creativity and speech. As hard as it may be to believe, the most valuable components of our immortal culture were created under a fully open regime with regard to access to pre-existing expressions and re-use. From the Platonic mimesis to Shakespeare’s “borrowed feathers,” the largest part of our culture has been produced under a paradigm in which imitation—even plagiarism—and social authorship formed constitutive elements of the creative moment. Pre-modern creativity spread from a continuous line of re-use and juxtaposition of pre-existing expressive content, transitioning from orality to textuality and then melding the two traditions. The cumulative and collaborative character of the oral-formulaic tradition dominated the development of epic literature. The literary pillars of Western culture, the Iliad and the Odyssey, were fully forged in the furnace of that tradition. Later, under the aegis of Macrobius’ art of rewriting and the Latin principles of imitatio, medieval epics grew out of similar dynamics of sharing and recombination of formulas and traditional patterns. Continuations, free re-use, and the re-modeling of iconic figures and characters, such as King Arthur and Roland, made chansons de geste and romance literature powerful vehicles in propelling cross-country circulation of culture. The parallelism between past and present highlights the incapacity of the present copyright system to recreate the cumulative and collaborative creative process that proved so fruitful in the past. In particular, the constant development and recursive use of iconic characters, which served as an engine for creativity in epic literature, is but a fading memory. This is because our policies for creativity are engineered in a fashion that stymies the re-use of information and knowledge, rather than facilitating it. Under the current regime, intellectual works are supposedly created as perfect, self-sustaining artifacts from the moment of their creation. Any modifications, derivations, and cumulative additions must secure preventive approval and must be paid off, as if they were nuisances to society. Rereading the history of aesthetics is particularly inspiring at the dawn of the networked age. The dynamics of sharing of pre-modern creativity parallel the features of digital networked creativity. As in the oral-formulaic tradition, digital creativity reconnects its exponential generative capacity to the ubiquity of participatory contributions. Additionally, the formula—the single unit to be used and re-used, worked and re-worked—is the building block of the remix culture as well as the oral formulaic tradition. Today, in an era of networked mass collaboration, ubiquitous online fan communities, user-based creativity, digital memes, and remix culture, the enclosure of knowledge brought about by an ever-expanding copyright paradigm is felt with renewed intensity. Therefore, I suggest that the communal, cumulative, social and collaborative nature of creativity and authorship should be rediscovered and should drive our policies. In order to plead my case, I have asked for the support of the most unexpected witnesses

The Death of ‘No Monitoring Obligations’: A Story of Untameable Monsters

In imposing a strict liability regime for alleged copyright infringement occurring on YouTube, Justice Salomão of the Brazilian Superior Tribunal de Justiça stated that “if Google created an ‘untameable monster,’ it should be the only one charged with any disastrous consequences generated by the lack of control of the users of its websites.” In order to tame the monster, the Brazilian Superior Court had to impose monitoring obligations on Youtube; this was not an isolated case. Proactive monitoring and filtering found their way into the legal system as a privileged enforcement strategy through legislation, judicial decisions, and private ordering. In multiple jurisdictions, recent case law has imposed proactive monitoring obligations on intermediaries across the entire spectrum of intermediary liability subject matters. Legislative proposals have followed suit. As part of its Digital Single Market Strategy, the European Commission, would like to introduce filtering obligations for intermediaries in both copyright and AVMS legislations. Meanwhile, online platforms have already set up miscellaneous filtering schemes on a voluntary basis. In this paper, I suggest that we are witnessing the death of “no monitoring obligations,” a well-marked trend in intermediary liability policy that can be contextualized within the emergence of a broader move towards private enforcement online and intermediaries’ self-intervention. In addition, filtering and monitoring will be dealt almost exclusively through automatic infringement assessment systems. Due process and fundamental guarantees get mauled by algorithmic enforcement, which might finally slay “no monitoring obligations” and fundamental rights online, together with the untameable monster

Internet Intermediary Liability: WILMap, Theory and Trends

To better understand the heterogeneity of the international online intermediary liability regime—with the collaboration of an amazing team of contributors across five continents—I have developed and launched the World Intermediary Liability Map (WILMap), a detailed Englishlanguage resource, hosted at Stanford CIS and comprising of case law, statutes, and proposed laws related to intermediary liability worldwide. Since its launch in July 2014, the WILMap has been steadily and rapidly growing. Today, the WILMap covers almost one hundred jurisdictions across Africa, Asia, the Caribbean, Europe, Latin America, North America and Oceania. This article begins with an introduction of the WILMap and the surrounding landscape of recent projects related to intermediary liability. The aim is to discuss the advancement in intermediary liability theory and describing the emerging regulatory trends

Right to be Forgotten: Much Ado about Nothing

In the information society, the role of private sector entities in gathering information for and about users has long been a most critical issue. Therefore, intermediaries have become a main focus of privacy regulations, especially in jurisdictions with a strong tradition of privacy protection such as Europe. In a landmark case, the ECJ ruled that an internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties. The recognition by the European Union of a so called “right to be forgotten” (RTBF) has ignited disgruntled reactions from civil society and legal scholars, especially in the United States. Meanwhile, proposals for the adoption of a similar right have appeared in several jurisdictions, including Brazil, Japan, Korea, and Russia. Supposedly, the right to be forgotten would endanger freedom of expression (FoE) and access to information. Apparently, factoids—defined by the Oxford Dictionary as “an item of unreliable information that is reported and repeated so often that it becomes accepted as fact”—dominated the recent debate surrounding the right to be forgotten. This paper will discuss and debunk these factoids, review data protection legislation in Europe, and explore the legal and policy implications of the newly emerging right to be forgotten. Finally, the idea that extra-territorial application of the RTBF might unleash a kraken that can break down the Internet will be contextualized within the present political scenario. The extra-territorial application of the RTBF follows in the footsteps of a global move towards data protectionism against the de facto market dominance of US Internet conglomerates. Global blocking governed by a nationality principle—as suggested by CNiL and other EU institutions—would put at rest these protectionist concerns

Rediscovering Cumulative Creativity from the Oral Formulaic Tradition to Digital Remix: Can I Get a Witness?

For most of human history, the essential nature of creativity was understood to be cumulative and collective. This notion has been largely forgotten by modern policies regulating creativity and speech. As hard as it may be to believe, the most valuable components of our immortal culture were created under a fully open regime with regard to access to pre-existing expressions and reuse. From the Platonic mimēsis to Shakespeare’s “borrowed feathers,” the largest part of our culture has been produced under a paradigm in which imitation – even plagiarism – and social authorship formed constitutive elements of the creative moment. Pre-modern creativity spread from a continuous line of re-use and juxtaposition of pre-existing expressive content, transitioning from orality to textuality and then melding the two traditions. The cumulative and collaborative character of the oral-formulaic tradition dominated the development of epic literature. The literary pillars of Western culture, the Iliad and the Odyssey, were fully forged in the furnace of that tradition. Later, under the aegis of Macrobius’ art of rewriting and the Latin principles of imitatio, medieval epics grew out of similar dynamics of sharing and recombination of formulas and traditional patterns. Continuations, free re-use, and re-modelling of iconic figures and characters, such as King Arthur and Roland, made chansons de geste and romance literature a powerful vehicle in propelling cross-country circulation of culture. The parallelism between past and present highlights the incapacity of the present copyright system to recreate the cumulative and collaborative creative process that proved so fruitful in the past. In particular, the constant development and recursive use of iconic characters, which served as an engine for creativity in epic literature, is but a fading memory. This is because our policies for creativity are engineered in a fashion that stymies the re-use of information and knowledge, rather than facilitating it. Under the current regime, intellectual works are supposedly created as perfect, self-sustaining artifacts from the moment of their creation. Any modifications, derivations, and cumulative additions must secure preventive approval and must be paid off, as if they were a nuisance for society. Rereading the history of aesthetic is particularly inspiring at the dawn of the networked age. The dynamics of sharing of pre-modern creativity parallel the features of digital networked creativity. As in the oral-formulaic tradition, digital creativity reconnects its exponential generative capacity to the ubiquity of participatory contributions. Additionally, the formula – the single unit to be used and re-used, worked and re-worked – is the building block of the remix culture as well as the oral formulaic tradition. Today, in an era of networked mass collaboration, ubiquitous online fan communities, user-based creativity, digital memes, and remix culture, the enclosure of knowledge brought about by an ever-expanding copyright paradigm is felt with renewed intensity. Therefore, I suggest that the communal, cumulative, social and collaborative nature of creativity and authorship should be rediscovered and should drive our policies. In order to plead my case, I have asked for the support of the most unexpected witnesses