Why "Safe Harbor" Laws Are Disastrous For Free Speech

by Rick Falkvinge
Dec. 26, 2011

In the debate about the American “Stop Online Piracy Act”, some have hailed the decade-old American DMCA as a law that was somehow beneficial for the development of new services on the net. This is not only a complete misconception, but a very dangerous one at that. The DMCA was basically a wet dream come true for the copyright industry, and the “safe harbor” provisions have gradually shifted the environment to suppress free speech and expression in favor of the suppressing industries: the copyright industries.

These “safe harbor” provisions basically mean that the only way for an intermediary to avoid liability is to immediately surrender the end-user to the suppressing industries. But it was never in the business interests of net services to safeguard free speech. This is something that politicians are tasked with, not corporations. Conversely, quite a few corporations — the suppressing industries in particular — have an interest in squelching free speech and expression.

Gray is obviously black, says the District Court.

These liability cases can take a long time with a very uncertain outcome. It is not uncommon for court cases concerning the copyright monopoly to go all the way to the Supreme Court, and yet, the suppressing industries would have us believe that it is clear-cut as day, and that anything they don’t like is, well, so obviously illegal that a low-level customer representative can call the shots.

In reality, things are not black and white, but rather, many expressions are somewhere on a scale of gray. But the effect of these “safe harbor” provisions is that no companies want to risk liability, and so, they choose to succumb for an expression that is even in the slightest doubt of not being perfectly crystalline white as snow.

After all, who knows what the courts will say?

Gray is obviously white, says the Appeals Court.

The effect is a corporatization of the very concept of free speech, where politicians have abdicated their job as ultimate guards of our civil liberties. For corporations don’t care about morally right and wrong — they care about not risking a loss in court. (There is nothing wrong with this; the role of corporations is to make money, and the role of politicians is to safeguard our liberties. The fault here lies squarely with the politicians and their abdication of responsibility.)

Therefore, these corporations will choose not to go to court, and will suppress free speech on behalf of the suppressing industries. They would rather call 1,000 gray cases black in error than calling one single gray case white in error.

The result is that any expression that even risks falling into a light gray area is suppressed as non-free speech or questionable speech. The entire field of gray turns to black. And as it does, over a decade or so, what was once pristine white has become a new scale of grayshades, as the suppressing industries yell and scream about how citizens are exercising their rights unfairly to their bottom line and aspirations of controlling our artistry.

Gray is obviously a complex swirling pattern of gray, says the Supreme Court. The district courts will sort it out.

And so, the cycle begins anew. It takes a decade or less for things that were obviously legal — light-light-light gray — to become suppressed by these “safe harbor” laws, after which the suppressing industries can claim that only a few criminals exhibit this still-perfectly-legal behavior of expressing themselves. New laws, claimed to codify existing practice, actually codify the changed landscape after the scale has shifted. It may indeed be “existing practice”, but one that is due to chilling effects from suppression of speech.

And then, new “safe harbors” are written into law proposals, to shift the border for free speech a great deal further in favor of the suppressing industries.

And again, corporations would rather err on the side of caution, preferring to throw a thousand users to the wolves in error than becoming liable for one shielded in error.

The DMCA was, and is, an abomination. So is the habit of letting corporations guard our right to free speech. It must be unconditional, and it isn’t when there is any kind of intermediary liability. The suppressing industries understand this, and therefore, drive this development.

That’s why we need to turn the tables. Civil liberties, not copyright industries. And never, ever, any kind of intermediary liability under the disguise of “safe harbor”.
__
Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other week. He is the founder of the Swedish and first Pirate Party, a whisky aficionado, and a low-altitude motorcycle pilot. His blog at falkvinge.net focuses on information policy.