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these companies and decided to offer them a mixed deal: hosting
companies don’t need to hire a million lawyers to review every
blog-post before it goes live, but rightsholders can order them
to remove any infringing material from the Net just by sending
them a notice that the material infringes.
This deal enabled hosting companies to offer free platforms
for publication and expression to everyone. But it also allowed
anyone to censor the Internet, just by making claims of infringe-
ment, without offering any evidence to support those claims,
without having to go to court to prove their claims (this has
proven to be an attractive nuisance, presenting an irresistible lure
to anyone with a beef against an online critic, from the Church of
Scientology to Diebold’s voting machines division).
The proposal for online hosts to figure out what infringes and
what doesn’t is wildly impractical. Under most countries’ copy-
right laws, creative works receive a copyright from the moment
that they are “fixed in a tangible medium” (hard drives count),
and this means that the pool of copyrighted works is so large as
to be, practically speaking, infinite. Knowing whether a work is
copyrighted, who holds the copyright, and whether a posting is
made with the rightsholder’s permission (or in accord with each
nation’s varying ideas about fair use) is impossible. The only way
to be sure is to start from the presumption that each creative
work is infringing, and then make each Internet user prove, to
some lawyer’s satisfaction, that she has the right to post each
drib of content that appears on the Web.
Imagine that such a system were the law of the land. There’s no
way Blogger or YouTube or Flickr could afford to offer free host-
ing to their users. Rather, all these hosted services would have to
charge enough for access to cover the scorching legal bills associ-
ated with checking all material. And not just the freebies, either:
your local ISP, the servers hosting your company’s website, or
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