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Rebecca Tushnet, Three Sizes Fit Some: Why Content Regulation Needs Test Suites, 38 Berkeley Tech. L.J. 921 (2023).

Abstract: The European Union's Digital Services Act (DSA) offers a new model for regulating online services that allow users to post things. It uses size-based tiers to delineate the different levels of obligation imposed on various services. Despite the tiers of regulation in the DSA, and very much in its copyright-specific companion Article 17, it's evident that the broad contours of the new rules were written with insufficient attention to variation. Instead, regulators assumed that "the internet" largely behaved like Youtube and Facebook. Using three examples of how that model is likely to be bad for a thriving online ecosystem--counting users, providing due process, and implementing copyright-specific rules--this Article concludes that, to improve policymaking, regulators should use test suites of differently situated services to ensure that they are at least considering existing diversity and properly identifying their targets.