Economic, Technical, and Legal Background

This book’s analysis of how a well-balanced design of automated filtering can be achieved presupposes an understanding of the economic implications of the dual-use problem of user-uploaded content platforms, of technical features of the state-of-the-art technology fingerprinting, and of the legal framework. This chapter provides this understanding. The economic implications of the dual-use problem, that is, the problem that platforms can be used for lawful and copyright-infringing uploading, are identified with recourse to the economic rationale for copyright protection. A crucial takeaway is that by facilitating copyright-infringing uploads, platforms expand access to creative content but disincentivise content creation. The technical features of fingerprinting are explained by means of a comparison to other content recognition technologies. A key takeaway is that circumvention of fingerprinting-based filters is possible but requires alterations of the content concerned. With respect to the legal framework, US law and EU law are reviewed regarding the extent to which filtering helps platforms to escape liability for copyright-infringing uploads and regarding responsibilities to prevent blockings of lawful upload attempts. An important takeaway is that not only the targeted regulation of filtering under EU law, but also US law, which does not explicitly regulate filtering, shapes platforms’ incentives regarding automated filtering.