Killing It With Close Inspection: Regulators Using Copyright Law to Control the Open Internet

Abstract

The dominant platforms – Google, Facebook, Twitter, YouTube, etc. – are seen by regulators as the architects for information sharing. Regulators, to date, have lacked many ways to regulate the Internet. However, that is not without numerous attempts. Now, European regulators have taken another attempt to regulate the Internet using copyright law. Though regulation is not inherently bad, the issue is that these regulations are taking for granted the value of free speech expressed via the Internet and its open communication channels. In theory, this illustration of free speech should compel the government to refrain from actions that effectively equate to censorship. Part I of this paper discusses the Directive on Copyright in the Digital Single Market (the “Copyright Directive”) primarily focusing on Article 11 and Article 13. In Part II, this paper discusses some regulatory and legal methods used by the interested parties to increase their control over the Internet in the name of copyright law. Because of such regulatory attempts, this paper argues in Part III that there is a shift back toward decentralization and open network protocols in an attempt to circumvent information controls. This paper does not advocate against copyright law and the need to update the law in the face of modern concerns. This paper is merely questioning if the gains from these new laws outweigh the costs of maintaining a well-informed public and an open Internet.