Niva Elkin-Koren, Yifat Nahmias, Maayan Perel

Research output: Contribution to journalArticlepeer-review


The safe harbor, which exempts online intennediaries from liability for materials hosted by their systems, has been the cornerstone of internet policy over the past several decades. Recently, however, the worrying proliferation of illegal or otherwise unwarranted content, fi'om copyright infringement to fake news to hate speech to terrorist propaganda, is triggering calls to abolish the safe harbor. The rhetoric is rather straightforward: platforms benefit from the sharing of content, they have the power to efficiently and effectively guard against illicit content, and if held liable for users' content they will act to address the spread of illegal content. Inflaming this rhetoric is a widespread understanding that platforms might have become too powerful and that in practice they Imve become the new online governors. Focusing on the recent confrontation of the safe harbor in copyright law, we show that debates on platform liability are at times heavy on rhetoric but light on facts. They have sometimes overlooked the consequences of abolishing the safe harbor and failed to question whether introducing liability could achieve a desirable outcome. Using the example of the music industry's call to amend copyright safe harbor because it has allegedly generated a "value gap, " this paper aims to demonstrate the dangers of designing policy based on unsubstantiated and populist rhetoric. The paper analyzes the value gap debate and debunks the allegations of right holders claiming that they generate insufficient income from digital platforms which reduces their incentives to create. While creators might have legitimate claims regarding a drop in their revenues, misleading rhetoric that remains unchecked might lead to misguided policy. At a macro level, our findings suggest that it is not necessarily the safe harbor that should be blamed for the worrying power concentration in todays' platform economy and that populist allegations must be verified carefidly before being acted upon.
Original languageEnglish
Pages (from-to)1-50
Number of pages50
JournalStanford law & policy review
Issue number1
StatePublished - 1 Jan 2020


  • COPYRIGHT infringement
  • FAKE news
  • FOREST canopy gaps
  • SAFE harbor


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