Institutionalized Algorithmic Enforcement—The Pros and Cons of the EU Approach to UGC Platform Liability
Martin Senftleben · FIU Law Review · 2020
If platform providers voluntarily introduce algorithmic enforcement measures, this may be seen as a private decision following from the freedom of companies to run their businesses as they wish. 1 If, however, copyright legislation institutionalizes algorithmic enforcement and imposes a legal obligation on platform providers to employ automated filtering tools, the law itself transforms copyright into a censorship and filtering instrument.Instead of serving as an engine of content creation and dissemination, 2 copyright protection becomes a central basis for content control in the online world.3 Nonetheless, the new EU Directive on Copyright in the Digital Single Market 4 follows this path and mandates the employment of automated filtering tools to ensure that unauthorized copyrighted content does not populate UGC platforms.5 statutory filtering obligations in EU copyright law (next section 1), the following analysis will demonstrate that the new EU rules on UGC licensing and screening will inevitably lead to the adoption of algorithmic enforcement measures in practice.Without automated content control, UGC platforms will be unable to escape liability for infringing user uploads (section 2).To provide a complete picture, however, it is important to also shed light on counterbalances which may distinguish this new, institutionalized form of algorithmic enforcement from known content filtering tools that have evolved as voluntary measures in the private sector.The DSM Directive 1 As to the constitutional recognition of the freedom to conduct a business, see Charter of Fundamental Rights of the European Union, art.16, 2000 O.J. (C 364) 1.As to the recognition of this freedom in the context of platforms for UGC, see Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam) v. Netlog NV, 2012 EUR-Lex CELEX LEXIS 62010CJ0360, ¶ ¶ 45 47, 51.2 As to this goal of the copyright system, see Harper v. Nation Enter., 471 U.S. 539, 558 (1985) (characterizing copyright as an engine of free expression ).For a detailed analysis of the interplay between copyright protection and freedom of expression, see P. Bernt