When the Protecting Lawful Streaming Act (PLSA) was signed into law in 2020, it closed a loophole that allowed streaming pirates to avoid being charged with a felony – despite the fact that every other form of large-scale piracy was treated as a felony. This loophole would have been closed much sooner – or might never have been created in the first place – but for a pervasive myth that “digital harms” are somehow less serious than their “real-life” equivalents.
Among those who persist in trying to keep the myth alive are acolytes of John Perry Barlow, founder of the Electronic Frontier Foundation. Barlow was a proponent of internet exceptionalism, the view that the internet is a place of ideas, blissfully free from the constraints and consequences of the physical world. It was a techno-utopian view, the kind we’ve seen before and will see again, and it has become dogma for some netizens, and a convenient shield for those who have benefitted financially – and immensely so – from propagating it.
Well, the truth is quite different, as we’ve all learned: what happens online doesn’t stay online. The internet is not a purely virtual (and virtuous) world of ideas, but a place that plays host to despicable conduct that has consequences in real life. The PLSA is a big step forward in curbing at least one slice of that conduct, digital piracy. But if we want to move closer to justice, we need to slam the door on the fallacy of internet exceptionalism.
Barlow wrote A Declaration of the Independence of Cyberspace in 1996, during a champagne-induced rant in Davos, Switzerland. In his drunken reverie, he said the internet “is a world that is both everywhere and nowhere, but it is not where bodies live.”
Barlow proclaimed that the rule of law has no role on the internet:
Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.
He argued it should be left to its own devices:
You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don’t exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means.
Barlow’s view proved remarkably influential, and even Congress bought into the notion of internet exceptionalism. In the same year as Barlow’s manifesto, Congress gave startup online businesses certain safe harbors under Section 230 of the Communications Act. Two years later, Congress created another safe harbor with Section 512 of the Copyright Act.
Understandably, lawmakers wanted the still-young internet to grow in an environment free from excessive regulation, but they didn’t think about how things would look after they removed their rose-colored glasses. It turns out that the internet has massive impacts in real life. Twenty-five years of experience has proved that Barlow was not just dead drunk. He was also dead wrong.
It didn’t take long for real life problems to emerge. The creative communities played the role of canaries in the coal mine. We have been suffering the real-world harm of illicit online activities for years. According to the U.S. Chamber of Commerce, digital piracy costs the U.S. at least $29 billion and 230,000 jobs each year.
Pirates were emboldened by the weak way courts interpreted section 512 of the Copyright Act – absolving platforms of any obligation to prevent uploads of pirated content so long as they take down individual infringing posts after the pirated horse has left the barn.
Big Tech companies like Google and Facebook got the message that copyright infringement was merely a cost of doing business. For them, that cost is a mere drop in the $40 billion bucket of annual advertising revenues. But for smaller creatives, piracy can be catastrophic, and most creatives are small. Even in the film and television industry, for example, 87 percent of the businesses employ fewer than 10 people.
Google and Facebook have made some improvements, but they are inadequate to solve the problem. For instance, Google’s YouTube has created Content ID, a powerful matching tool that can prevent unauthorized uploads of copyrighted works. But Google still refuses to make that tool available to smaller creatives.
Lax attitudes toward the facilitation of copyright infringement by big internet platforms led to general indifference toward illegal activity online. A cavalier approach to online lawlessness is the all too predictable consequence of internet exceptionalism.
If you want to see the latest example of platforms’ willful disregard for the harm they are facilitating, just look at the recent Wall Street Journal series The Facebook Files. Topics include content exceptions for VIPs, depression among teen girls, anger-inducing algorithms, human trafficking, marketing toward “tweens” and younger children, and a whistleblower’s demands for change.
Platform executives and their allies can rationalize all they want, but while they continue to drink champagne at alpine resorts, their failure to prevent abuse of their services is causing unacceptable harm… in real life.
Most businesses that don’t benefit from these special Congressional shields can be held civilly liable for their negligence. As twelve online safety organizations recently wrote in a letter to the House and Senate, “[a]ll businesses, whether ‘virtual’ or ‘brick and mortar,’ should have an obligation to act responsibly—and be held accountable when they don’t.”
It’s time to accept the fact that the internet is not “exceptional.” It has had a momentous impact on the way we live and how we connect with each other, but it is as much a part of the real world as your car or your home or your money. All of those things are protected by the law – and the people who try to steal them from you are held accountable. It is time for internet platforms to be held to the same real-life standards as anyone else who has the capacity to harm.
If we fail, any hope of stemming illegal activity online – be it piracy or any of the innumerable other harms that can result from misuse of the internet – will be as illusory as Barlow’s inebriated vision of the internet.