"Notice-And-Stay-Down" Is Really "Filter-Everything"
<i>That said, safe harbors are essential to the way the Internet works.</i><p>Reasonable people could debate what form a safe harbor should take, though.<p>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.<p>Big content sharing sites often do facilitate illegal activity on a huge scale. Plenty of them got start doing so more-or-less overtly.<p>Big content sharing sites often do make a huge amount of money.<p>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&#x27;t work otherwise. Yes, it&#x27;s difficult to determine reliably whether some untrusted third party&#x27;s content might be infringing or not. Yes, it&#x27;s expensive to screen content you&#x27;re going to share before you share it. These things are difficult and expensive for everyone else, too, but we don&#x27;t all get to excuse ourselves from following the law.<p>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&#x27;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&#x27;s done at arm&#x27;s length and &quot;everyone is doing it&quot;.<p>So personally, I&#x27;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 <i>vastly</i> 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.<p>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&#x27;ll also then have to take direct responsibility for the consequences if that what they do is illegal.