Thread by @daphnehk

OK here's my quick and dirty gloss on the Peterson v. Youtube case from the CJEU today. 1/
curia.europa.eu/juris/document…

I see this case as having three big questions:
(1) When can a platform be liable for (c) infringement under substantive (c) law?
(2) When is platform immunized from such infringement by eCommerce safe harbors?
(3) What injunctions can issue even if platform is not liable?

2/

Question (1) -- when can a platform be liable for (c) infringement under substantive (c) law -- turns on evolving case law about communication to the public.
Bottom line: There are a lot of ways to wind up liable here, so the safe harbor issue in Question (2) matters a ton.
3/

I suspect there is some retconning here as the court explains the meaning of the GS Media holding as regards platform liability for communication to the public... But I'm not close enough to the case law to be sure. 4/

As an aside, I sure don't miss working on copyright all the time. The recitation of facts in this case is giving me bad flashbacks to 2008. 5/

OK, question (2) -- about hosting service immunity under eCommerce Directive Art. 14 -- is the meat of the opinion as far as I'm concerned. It's pretty good, and usefully clarifies a bunch of things. 6/

To create knowledge and remove immunity, a notice must contain enough info to show infringement even without "detailed legal examination" by the platform, and **establish that removal is compatible with freedom of expression.** 7/

Also: Platforms don't LOSE immunity just because they try to prevent infringement using tools like YouTube's ContentID.
That would be absurd, right?
Well...not according to a lot of plaintiffs and some courts. Glad the CJEU speaks to this clearly. 8/

But... here's the squishiness. Platforms can lose immunity if they contribute "beyond merely making the platform available." So now lower courts get to decide which of a host's activities constitutes "the platform" and what is some feature or activity "beyond" the platform. 9/

If this "what is the platform and what is a feature bolted on to the platform" question sounds familiar over in this corner of Twitter, it's bc we've been talking about it all week regarding the new U.S. competition bills. @marklemley @blakereid 10/

On to Question (3) -- when can courts issue injunctions to non-liable platforms, and how much monitoring can those injunctions require? This is where IMO things get ugly, though the outcome is not surprising. 11/

The CJEU is looking at Germany's Stoererhaftung or "interferer" doctrine, which lets courts issue injunctions to require platforms to *prevent* infringement, even if the platform is not liable on the merits of the (c) claim (Q1 here) or is immunized under Art. 14 (our Q1). 12/

Injunctions requiring platforms to prevent infringement (by monitoring) are OK as long as the platform was first notified about the specific work, says the CJEU. 13/

This continues the idea, also used in the Glawischnig-Piesczek case, that monitoring is not "general" if it only involves looking for particular, specified, infringements. (Or in that case acts of defamation.) 13/

My analysis of that case is here. I had real issues with it. This case is much better in some respects. In particular, it lists all THREE rights that must be considered: the claimants, the platform's, and ALSO users' rights, including expression/info.
academic.oup.com/grurint/articl… 14/

And, like Glawischnig-Piesczek, this clearly refers only to court-issued injunctions. It is not, like the new Art. 17, open season for rightsholders to get monitoring without judicial review. 15/

But as a matter of statutory/directive interpretation, it turns on what I see as a fiction: that if platforms are filtering only specified works, then they are not actively monitoring "all the content uploaded." REALLY? I mean, how else could this possibly work? 16/

Happily for my peace of mind, I am resigned to that statutory fudge. And given Glawischnig-Piesczek and other things, this outcome is not surprising. I just hope Member State courts get serious about the fundamental rights analysis. 17/

The fundamental rights analysis should require asking how the ACTUAL filter being demanded will work in real life, what unintended consequences it will have, how that affects users' rights to privacy, freedom from discrimination, right to remedy, expression/info rights. 18/

That's my take, gotta go feed kids breakfast now, thanks for listening. 19/19

Oops this should say “our Q2” for that second one.

Not sure why this threading isn’t working, but here are the remaining six tweets:

https://twitter.com/daphnehk/status/1407350352140288012

An important point that came up from @javierpallero: YouTube recommendations happen to be part of the facts of this case and the court, without analysis, treated them as part of the platform, so they’re immunized.

For now. I guess lower courts can find new relevant facts…