Hearing on the Digital Millennium Copyright Act at 22: How Other Countries Are Handling Online Piracy - Statement of Daphne Keller

Publication Type: 
Other Writing
Publication Date: 
March 10, 2020

Professor Daphne Keller discussed intermediary liability laws, i.e. “the laws that define platforms responsibility for content posted by their users including the DMCA” and noted that international approaches to intermediary liability fall along a broad spectrum, with the DMCA falling somewhere in the middle. In her oral and written testimony, she also addressed the “de facto filtering mandate” of Article 17 of the European DSM Directive, which “instructs covered platforms to make ‘best efforts’ to prevent uploads of specified works, but to simultaneously protect users’ rights to quote, criticize, parody, and otherwise lawfully use those same works.”   She explained that Article 17 has harm-prevention benefits, and “real costs for speech, innovation, and other important values.”  However, she notes, there is inadequate information regarding “how common filtering failures are, how often human review corrects them, how effective counternotice systems are, or what patterns of bias or disparate impact may infect these systems.”