In platform content regulation, operational logistics are everything. That’s cropping up, inevitably, as the EU copyright filter wars heat up again this fall. 1/

You may recall that Copyright Directive Article 17 “resolved” the tension between rightsholders’ and users’ rights by simply mandating the impossible: platforms must “prevent” infringing uploads while simultaneously “in no way affect[ing]” legitimate uses. 2/

No filter in the world can actually achieve both those things. Even filter vendors told the Commission that. http://infojustice.org/archives/41930  3/

And PS filters + human review won’t do a good job either. Content moderators, even with great training, won’t know licensing history or nuances of every national law. And requiring lots and lots of human review = entrenching the incumbents who can afford that. 4/

EU lawmakers passed the buck to the Commission to issue Guidelines clarifying Article 17’s impossible “block infringement and don’t block lawful use” task. That’s what the fight is about now. 5/

Since filters CAN’T perfectly enforce the law, the dispute has inevitably moved to “who wins by default when filters fail?”
The operational logistics of real world content moderation are entering the policy discussion about three years too late.
6/

If it’s not clear if the user is lawfully sharing expression and information, but a filter catches their post, does the post (a) come down or (b) stay up? Are users guilty until proven innocent, or innocent until proven guilty? 7/

Defaults are everything.

DEFAULTS ARE EVERYTHING 9/

There is a pretense that the default answer will be temporary, because later on users or rightsholders will appeal and we’ll all arrive at the right answer. That’s a fantasy. 10/

Research suggests users don't really use counternotice. (Note the DMCA has special barriers, so things might be slightly better in Europe, but these numbers are *really* not encouraging.) 11/ http://cyberlaw.stanford.edu/blog/2017/10/counter-notice-does-not-fix-over-removal-online-speech

Anecdata suggests that the users who do appeal are often not the ones with a legit claims. (Ask people who work in Trust and Safety) 12/

Human rights advocates say appeals for *uploaders* can't address the right to receive information for listeners, like orgs that gather evidence of human rights abuses on the Internet. 13/ https://blog.witness.org/2019/01/witness-brings-together-voices-push-back-dangerous-dissemination-terrorist-content-proposal-civil-society-letter/

Anyhow, here are the latest sallies in the fight over who wins by default when the filters fail.

Rightsholders say: if it *might* be infringing, take it down and let the users appeal. 14/ https://www.politico.eu/wp-content/uploads/2020/09/Rightholders-letter-on-Consultation-on-Article-17-Guidance-10-09-20.pdf?utm_source=POLITICO.EU&utm_campaign=2478936312-EMAIL_CAMPAIGN_2020_09_11_05_00&utm_medium=email&utm_term=0_10959edeb5-2478936312-190062957

User rights groups say no, if it *might* be infringing that’s not reason enough to take it down. 15/
https://www.politico.eu/wp-content/uploads/2020/09/Civil_society_letter_Art17_consultation.pdf?utm_source=POLITICO.EU&utm_campaign=c2d78f6ca1-EMAIL_CAMPAIGN_2020_09_15_04_59&utm_medium=email&utm_term=0_10959edeb5-c2d78f6ca1-190062957

Pretending that automation could solve these problems got us into this mess. EU lawmakers considering filter mandates in the Terrorist Content Regulation trilogues, please take note! 16/16