Because Of Course: Rightsholders Pushing To Turn Digital Services Act Into Another Anti-Piracy Tool

It never fails. We’ve been talking about the EU’s Digital Services Act for a few years now, looking at how the EU’s technocratic desire to overregulate the internet is going to cause real problems. And while at least they took a more systematic process to figuring out how to write the law, the end result still struck us as a disaster in waiting. And, because this is how any internet regulation attempt always turns out, after all the back and forth discussions and careful weighing of different ideas, someone always has to come in at the very end and seek to make everything much worse. In this case, the issue is that the EU Parliament, which gave us the terrible and broken Copyright Directive, is now trying to sneak more bad copyright ideas into the DSA.

The note expressed support for the proposal of the European Commission, which defined search engines as an ad hoc category and introduces a notice and action (N&A) mechanism that would be required to take down illegal content once it is flagged to them. At the same time, Didier proposed a few changes to the Commission’s text.

The note asked to remove a part in the text’s preamble providing examples of ‘mere conduit’, ‘caching’ and ‘hosting’ services, categories with different liability regimes established in the eCommerce Directive, the predecessor of the DSA. These examples were overly descriptive for the rightsholders that prefer a case-by-case in court.

Another change would mandate that if illegal content is flagged, not just the relevant web pages but the entire website should be delisted, namely removed by the search results. In the most extreme case, that would mean that if a video is illegally uploaded on YouTube, Google would have to remove the entire platform from its search results.

Finally, a modification to an article would oblige search engines to remove all search results referring to the flagged illegal content, not only the specific website. In other words, the platforms would have to monitor all websites searching for unlawful content.

Basically, throwing out whatever semi-balanced (not really, but they’d like to believe it is) intermediary liability rules they could come up with, and inserting a maximum punishment for sites and content deemed illegal (i.e. infringing). Incredible.

I mean, literally, they want this to say that if content is “flagged” (not adjudicated) as illegal, entire websites should be blocked from search results. That seems extreme, and extremely censorial, effectively giving tremendous power to silence speech to just about anyone who wants to take down some content.