In January, on the anniversary of the defeat of the Stop Online Piracy Act, an Internet activist group called Fight for the Future uploaded a video of Dr. Martin Luther King Jr.’s “I have a Dream” speech, in violation of copyright law.

It was promptly taken down, but the group uploaded it a second time. Fight for the Future stated in a preface to its second video that if SOPA, which would have expanded the ability to enforce copyright, had passed, “entire websites could’ve been shut down just for linking to [the clip].” 

Actually, says Barbora Bukovska, senior director for law and policy at the free expression group Article 19, that’s already happening.

Although SOPA and its European equivalent, the Anti-Counterfeiting Trade Agreement (ACTA), were rejected last year, the spirit of the laws that never were lives on, said attendees at an Internet conference last week in Vienna, organized by the Organization for Security and Cooperation in Europe. 

“ACTA is dead in its past form, but the underlying ideas are still alive,” said Jeremie Zimmermann, a French blogger and Internet activist in an interview between panels.
Portions of the failed law are popping up in draft trade agreements like the Trans-Pacific Partnership and the Comprehensive and Economic Trade Agreement between Canada and the European Union, Zimmermann said. And, like ACTA, these agreements are being written with no public input—Internet users are not being consulted in the writing and formulating laws that will affect them.

The European Commission is tackling the copyright issue by studying it for a year, its vice president, Neelie Kroes, announced in December. The panel will cover six areas: cross-border portability of content, user-generated content, data- and text-mining, private copy levies, access to audio-visual works, and cultural heritage, all with an eye toward figuring out how to modernize current laws.
 
“Many of the rules have been in place since before things like YouTube, Facebook, or data-mining techniques even existed. And no matter what perspective you bring to the debate, it is obvious that the current fragmented rules in Europe and elsewhere have created frustrations,” she wrote on her blog. 

The commission could recommend new laws. But Joe McNamee, EU advocacy coordinator at the European Digital Rights Initiative, who has been following the issue closely in Brussels, doesn’t believe that is likely, because 2014 is an election year. It’s more likely that any recommendations made by the panel will go nowhere, he said.
 
Meanwhile, in the absence of ACTA or any other new copyright agreement, the trend now is toward private enforcement by intermediaries through their terms and conditions contracts. 

Online intermediaries, like YouTube, Google, domain hosts, PayPal, or Facebook, have written takedown policies into their terms and conditions contracts so that they will not be seen as accomplices to copyright infringement, libel, or other illegal content. To limit their own liability, they retain the right to remove or disable content in a timely manner when they are notified of any alleged misuse. Because laws defining speech differ throughout the world, online hosts have made the language as broad as possible.

“What they say is, ‘We may remove any application for any reason or for no reason,’” McNamee said, echoing other critics who charge that the current right to remove content is too broad. The way they see it, there are two problems. First, online hosts are being asked to protect copyright laws that have become outdated in the 21st century. Second, free speech is being circumvented.

The King video exemplifies the problems of existing intellectual property laws, Bukovska said. It is absurd to protect the copyright on a historic speech given in a public space by a public personality. 

Worse, she added, the takedowns can affect not just alleged copyright violators, but others as well for a variety of reasons. Objections to a movie fan creating a harmless meme or to the message being spread by a dissident blogger can spur takedowns and, since they’re being arbitrated by private companies, users have little recourse, or they must defend themselves after the takedown has occurred. The system presumes guilt. 

Marco Pancini, senior policy counsel at Google who attended the conference, said his company found it to be “very delicate work” to find the right way to avoid abuses of free speech. He called for an open debate on how to tackle the challenges.
 
“We don’t want to be left alone in taking action because we don’t believe in… simply leaving it to trust,” he said. “It is not the role of the intermediaries to be judge and jury. It’s to empower people to express themselves.”
 
Some European countries, like Poland, are attempting to move enforcement oversight from the private to the public sector. The legislature there is considering a law in which any webpage could be taken down without prior notice if complaints are received, a government minister said. But as currently envisioned, several activists said, Poland’s proposed law lacks a clear provision for the right of appeal for those who are affected by a takedown. 

Dawn Nunziato, professor of copyright law at George Washington University, said that if any Internet speech is to be blocked, it must be done with transparency, notice, and foreseeability. There can’t be any secret blocking or filtering, she said. Internet users must be able to predict in advance what the scope of the restriction is going to be. And, she added, they must have the right to appeal.

She told delegates of the 57 member states of the OSCE that they must act with care to safeguard free speech.

“It you’re going to distinguish between legal speech and illegal speech, you’re required to use a scalpel and not a sledgehammer,” she said.

Disclosures: The reporter has received money from OSCE, for editing its annual report. CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

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Alison Langley has more than 25 years experience in journalism as a reporter and editor. Her stories have appeared in a variety of publications, including The New York Times, The Guardian, The FT and The Independent. She currently lectures in journalism at Fachhochschule Wien and Webster University Vienna.