Heavyweight Bots in the Clouds: The Wrong Incentives and Poorly Crafted Balances That Lead to the Blocking of Information Online

Raymond, Anjanette H. | August 1, 2013

The United States and the European Union have long recognized the need to protect ISPs from potential liability from customers using their services to infringe intellectual property rights. These protections arise from a long-standing belief that intellectual property right holders should bear the burden of protecting their property, even in the quick moving Internet environment. However, a recent series of cases has called into question the ISPs’ liability protections as their technology is often the only real means to prevent wide scale infringing activity. This series has caused courts to revisit ISPs’ liability and to impose a ‘cooperative burden’ requiring ISPs to assist in the protection of intellectual property rights. In creating this burden, the ISPs and right holders have reacted by working together to craft technology advances that identify infringing activities. However, the technology is not yet ready for wide scale use and is often accompanied by policies that encourage the over-identification of material that should never be considered infringing. The over-identification is even more troubling in the face of automatic blocking activities that allow entities to claim material that is not part of their intellectual property portfolio. This activity is preventing communication, blocking the dissemination of information, and sometimes holding rightful owners of the material hostage to the automatic bot shut down activities. Simply put, this new cooperative burden is creating an odd set of incentives with no regard for individual internet users’ rights. This paper will consider incentives created under the law for ISPs to over-protect intellectual property rights. The paper will then consider the creation of an appropriate balance between stakeholders within the online world—one that re-evaluates the priority given to right holders and instead truly balances the burden of protecting intellectual property in the online world. Finally, the paper will suggest that the law must be reconsidered in light of the new technologies being employed by ISPs and intellectual property right holders in an effort to combat online piracy at the expense of individual users.