EU Commission Releases Plans To More Directly Regulate Internet, Pretending It's Not Regulating The Internet

from the this-is-an-issue dept

Thu, May 26th 2016 3:20am — Mike Masnick

Well, this isn't a surprise. After all, we warned you that it was likely to happen, and we helped get together folks to warn the EU Commission that this was a bad idea, but the EU Commission has always seemed dead set on a plan that they believe will hold back big successful American internet firms, while fostering support for European ones. This week they made their first move by releasing details of some of their plans. This is all part of the "Digital Single Market" plan, which, in theory, makes a ton of sense. The idea is to knock down geographical regulatory barriers on the internet, such as geoblocking. And the first part of the EU's plan is right in line with that idea and makes perfect sense. It talks about getting rid of geoblocking and also making cross-border delivery of packages easier and less expensive -- basically making e-commerce work better. That's all good.

But it's the second part that is concerning, and that's where they start talking about updating "audiovisual rights" and the regulation of "online platforms." The audiovisual rights stuff is getting most of the press attention, because of silly rules like requiring video platforms to promote more European-created content.

Currently, European TV broadcasters invest around 20% of their revenues in original content and on-demand providers less than 1%. The Commission wants TV broadcasters to continue to dedicate at least half of viewing time to European works and will oblige on-demand providers to ensure at least 20% share of European content in their catalogues.

This is a silly protectionist measure that we've seen in various countries for TV for ages and it's a joke. If you want more people viewing European content have them make better content. Forcing content on people because it's "from Europe" isn't going to make anyone want to watch it if it sucks. It will also, of course, make life more difficult for new entrants who will have to make sure that enough of their content meets this arbitrary standard.

But the much more concerning stuff involves the regulation of the internet. Now, yes, the EU Commission basically tries to bend over backwards to say that this isn't about creating new regulations for the internet. And also to claim that they're not changing the "intermediary liability" regime as laid out in the E-Commerce Directive that is a decent, if unfortunately weaker, version of US intermediary liability protections, saying that platforms aren't responsible for actions of their users. But... there's a big "but" after those claims, and it basically undermines those claims. You can read the following and see them swearing no new regulations and no changes, but the four bullet points and the details buried in them suggest something entirely different:

Today's Communication on platforms does not propose a new general law on online platforms, nor does it suggest to change the liability regime set by the e-Commerce Directive.

The aim is to make sure that platforms can be created, scale up and grow in the European Union. To reach this goal we need a functioning Digital Single Market where online platforms (both startups and established market operators) are not hampered by heavy regulation.

Online platforms are already subject to EU legislation such as consumer and data protection rules, and competition law. New initiatives will only be taken to tackle any specific problems identified and only if it is established that better enforcement of existing rules is not sufficient to address these.

In our approach to online platforms, we will be guided by the following principles:

a level-playing field for comparable digital services

responsible behaviour of online platforms to protect core values,

transparency and fairness for maintaining user trust and safeguarding innovation,

open and non-discriminatory markets in a data-driven economy.

Let's go one by one. First the "level playing field." This is a popular line, but it's kind of meaningless. What does it even mean? Some companies are going to be more successful than others, or use different business models or strategies. And those, by their very nature, create a different kind of playing field. We should be worried when the government is arguing for tilting the playing field one way or the other. For example, in earlier discussions about this, there were arguments that YouTube's model was unfair, but Spotify's model was fine. Why should the government favor one over the other?

Also, within the details, they make it clear that, despite what was said above, this is about extending new censorship regulations to platforms. "Data protection" regulations include things like "the right to be forgotten." Recognize that when reading this:

In the new e-Privacy Directive the Commission will consider, for example, extending data protection obligations currently applicable only to telecoms companies to platforms.

The next one is the big concern, because it's so... broad: "Ensuring that online platforms behave responsibly." What does that mean? Who determines what's "responsible?" Because you have the RIAA and MPAA insisting that "responsible" means vast censorship of platforms to block anything that might even remotely be infringing. Or you have the FBI insisting that "responsible" means keeping log files for a really long time and not encrypting stuff (or encrypting it with holes in it). There's a lot of wiggle room within "behaving responsibly" that should be a cause for concern.

And, indeed, it looks like the EU Commission is buying the MPAA/RIAA's view of what "behaving responsibly" means:

In the third quarter of 2016, the Commission will propose a copyright reform package aiming to achieve a fairer allocation of value generated by the online distribution of copyright-protected content by online platforms providing access to such content.

This is a fairly loud dog whistle to the RIAA. In the past few months the RIAA has been going on and on about what they're ridiculously calling the "value gap" in online platforms. In short that "value gap" is that internet companies are making lots of money... while record labels are not. To them, that's because of some sort of unfairness in the law. To most everyone else it's because the markets have shifted, and the record labels failed to adapt. And, really, if we're talking about unfair markets and "fair allocation of value" why didn't anyone complain through the 70s, 80s and 90s when the laws were so tilted that the labels basically got all of the "allocation of value" while the actual artists got stiffed?

And, of course, despite the EU Commission initially saying that there would be no impact on the intermediary liability protections in the E-Commerce Directive, they pretty quickly walk that back in the details:

In relation to the liability regime of online intermediaries established by the e-Commerce Directive, the Commission will assess:

the need for guidance on the liability of online platforms when putting in place voluntary measures to fight illegal content online [starting in the second half of 2016], and
the need for a formal notice-and-action procedures [after taking due account of the updated audiovisual media and copyright frameworks].

Got that? So now the government will be pushing for "voluntary measures" to take down content. But since it's the government looking into it, it's not so voluntary, is it? And then a "notice and action procedure" which means "notice and takedown." In the US, obviously, we have that for copyright, which has created a massive censorship regime, but we don't have such a setup for other kinds of content. The EU, generally, does have a sort of notice-and-takedown for things like defamation, and it looks like that may expand.

Oh, and then the ever amorphous censorship of "hate speech," which no one ever seems to define clearly:

In addition to revised audiovisual media rules, the Commission will further encourage coordinated EU-wide self-regulatory efforts by online platforms in tackling illegal content online. The Commission is currently discussing with IT companies on a code of conduct on combatting hate speech online.

Sure, I dislike hate speech as much as the next guy, but attempts to suppress hate speech tend to lead to straight up government censorship or as a way to attack speech governments don't like.

Next up, we've got: "Fostering trust, transparency and ensuring fairness." Yup, there's that "fairness" again. Obviously, fostering trust and transparency are actually things I'm very, very supportive of. But I'm not clear on what the government needs to be doing here, when there are often good ways for the market to do that itself. Companies that are more transparent generate more trust by themselves. And many new platforms rely on public trust to actually provide any value. So, sure, I don't want fake reviews online either, but isn't that something that platforms can handle by themselves?

The Commission will encourage industry to step up voluntary efforts, which it will help in framing, to prevent trust-diminishing practices (in particular, but not limited to, tackling fake or misleading online reviews) and monitor the implementation of the self-regulatory principles agreed on comparison websites and apps.

So, while we applaud the idea of doing away with geoblocking, as well as the general principles of fairness, trust and transparency, it's extremely frightening to think about what the government has to do in this arena at all, since almost all of the suggested ideas are wide open to abuse in the form of just attacking platforms the government or legacy industries don't like, rather than focusing on what actually creates the most value for the public.

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Filed Under: content, copyright, eu, fairness, intermediary liability, internet, openness, platforms, regulations, transparency

30 Comments

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That One Guy (profile), 26 May 2016 @ 2:00am

You keep using those words...
responsible behaviour... fairer allocation of value... self-regulatory efforts... voluntary efforts...

They certainly seem to be trying to make it sound like all of this is simply due to companies deciding entirely on their own the best way to go about things, but I don't think anyone is missing the giant club they're hefting as they 'suggest' their changes.

"Do it our way, voluntarily of course, or we'll make you do it."

The companies and services involved are probably not going to be the ones deciding what counts as 'reasonable', they're not likely to be the ones deciding what is a 'fair' share, and the 'voluntary' self-regulation is at the end of a legal cannon, little more than the government's way of disclaiming responsibility even as they force changes.

They can lie as much as they want about how this isn't about adding regulations to hamstring companies, forcing one industry to support another, or adding in rules to force companies to act as government tools but I rather doubt anyone capable of reading between the lines(or even just reading the actual lines rather than the sound-bite version ) will buy such blatant falsehoods.

Unfortunately the politicians voting on such measures aren't likely to care unless the public speaks up and makes them care, so hopefully this will lead to a large enough public backlash to quash their power grab in time.
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Anonymous Coward, 26 May 2016 @ 3:29am

Sounds like fascism to me
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Anonymous Coward, 26 May 2016 @ 3:55am

Given the constraints, I don't think a notice and takedown system is bad in theory. Implementation is the issue in the USA.

If there were a reasonable balance of power I think it'd mostly work fine. There will be issues but on the whole it could work. Problem is massive liability for infringement and zero liability for false claims. I can take your content down for weeks via dmca with zero risk and don't even have to apologize.

The odds of winning a claim for falsely censoring content is the potential for a token fee and attorneys fees if you're lucky. That'll take 4 years to play out. Or you're on the hook for attorney's fees and over 3 years income for the average family. Not a good setup especially with a lot of gray area in copyright law/fair use
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Anonymous Coward, 26 May 2016 @ 4:08am

This almost never goes wrong.
Politician: "People are not watching enough European content, so we will force you to have at least 20% European content"

Content provider: "That is going to be expensive"

Politician: "Don't care. Do it!"

Content Provider: "Okay. We will just buy the cheapest 1 star content in order to make up 20%"

European public: "European content sucks! not watching this"

Politician: "People are not watching enough European content..."
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Christopher (profile), 26 May 2016 @ 4:25am

Re: You keep using those words...
Politicians do not care unless something is likely to make them lose their positions.
Oh wait.... once they are elected in they cannot lose their positions, so we are hosed!
Recall? Too hard to do the vast majority of the time.
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Anonymous Coward, 26 May 2016 @ 4:56am

Re: This almost never goes wrong.
Exactly. Not likely to have the effect they intend. If there is a gap, easiest way to fix it is put up a bunch of low budget garbage from the EU
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PaulT (profile), 26 May 2016 @ 5:00am

Re: Re: This almost never goes wrong.
Makes a change from the usual American low budget (and high budget) garbage, at least...
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PaulT (profile), 26 May 2016 @ 5:04am

Re: This almost never goes wrong.
It would be interesting to see how many of the more expensive movies are expensive because they've been bought up by US-based distributors like the Weinsteins. Low budget/cheap distribution doesn't necessarily mean bad, but since Hollywood still largely control international distribution, they're the ones buying the better content for themselves.
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Anonymous Howard II, 26 May 2016 @ 5:11am

20% European Content
Will they also have to re-dub it into all the languages used in Europe?

Even if you think it's a good idea to mandate 20% Euro content (FWIW I don't), it'll be extremely pointless if it's in a language that maybe only 5% of the continent understands.
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Anonymous Coward, 26 May 2016 @ 5:48am

Re: Re: Re: This almost never goes wrong.
American low-budget garbage is in English and has a broad audience of garbage-viewers.
European low-budget garbage is in Finnish and Estonian, making this move more stupid across the EU than perhaps anywhere else in the world.
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PaulT (profile), 26 May 2016 @ 5:56am

Re: Re: Re: Re: This almost never goes wrong.
"European low-budget garbage is in Finnish and Estonian"

Citation needed. I mean, sure, there are bad movies in those languages but are you trying to imply than a Finnish movie is instantly less worth than a French one just because there's less native speakers? Not everyone's afraid of subtitles.
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PaulT (profile), 26 May 2016 @ 6:02am

Re: 20% European Content
Depends on the requirements. If they require the content to be specifically *distributed* in each country, this could cause problems (although subtitles would be more likely than dubbing in many countries).

However, they just be required to make the content *available* - meaning that they aren't specifically marketed but are available to any EU resident to stream - so, for example, Danish movies aren't specifically released in Italy but someone in Italy can access it if they want without extra charge.

In which case, that's really the situation they're in with physical media - a Dane living in Italy wouldn't be blocked from playing the DVD they ordered from Denmark (same DVD region) but they are currently blocked from accessing the Danish-only Netflix content.
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kallethen, 26 May 2016 @ 6:14am

About the geoblocking...
Even that is a bit of a farce, at least according to what I read on Ars Technica's article about this (emphasis mine):

"Although the commission wants to totally eliminate geoblocking for the purchase of online goods and services, for the time being, copyrighted audiovisual content will be exempt from the rules."

http://arstechnica.com/tech-policy/2016/05/eu-digital-single-market-netflix-tax-details/
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Anonymous Coward, 26 May 2016 @ 6:16am

Re: Re: You keep using those words...
And this is why people DESERVE what they get from their governments.

If everyone is okay with telling lazy people to get off their own asses to improve their life then it is fair to tell all citizens that they are not blameless for their failure to keep their government clean from corruption.
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Anonymous Coward, 26 May 2016 @ 6:33am

The EU-commission is a bunch of eurocrats. The online regulation of IP is in a fierce deadlock and has been so for years in the parliament.

Now, the governments in EU are a bunch of absolute ignoramouses when it comes to EU. Apparently the presumption is that if the commission and the parliament can agree and COREPER doesn't specifically block it, it is good. So much for them serving as a check and balance when they trust COREPER unquestionably.
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Anonymous Coward, 26 May 2016 @ 6:49am

Re: 20% European Content
As long as there is a suitably rich sub-titling system, I don't see what difference it makes. Estonian, Finnish, French, or Italian; it's all Greek to me. Slap some subtitles on it that I can understand, and I'll watch something that's good no matter what language is spoken.
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Anonymous Coward, 26 May 2016 @ 6:49am

Re: Re: Re: You keep using those words...
Another ill informed simplistic pov.

Any more dumb platitudes?
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Erik, 26 May 2016 @ 7:51am

The Artist's Fair Share
I know how to get the artists their fair share of all that money. Take the labels and publishers out of the loop and have Youtube, Spotify, etc., pay them directly. That'll mollify the RIAA and MPAA in a big hurry.
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crade (profile), 26 May 2016 @ 8:22am

Re: Re: Re: You keep using those words...
Well, as long as you have someone to blame, we don't have to worry :)
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Anonymous Coward, 26 May 2016 @ 8:35am

Translation

By the company, for the company.

Give me control, or give me death.

Absolute freedom, corrupts, absolutely.

I have a dream, where rich people and influential people can sit side by side and dictate the world

You are less, i am more

Consent?! WHAT, stinking consent.......no seriously, ...whats that, frensch?
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Anonymous Coward, 26 May 2016 @ 8:38am

Re: Re: You keep using those words...
its not hard to do the vast majority of the time, many have been able to make Politicians care! we will change this law
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Anonymous Coward, 26 May 2016 @ 8:49am

Re:
they will never get control
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Dave Cortright (profile), 26 May 2016 @ 10:17am

I can't wait to see the minimum compliance on this one
If I were a content provider I would make sure 20% of my content was just people making obscene gestures and mocking the European Commission and their rules.

Or how about 24 hours of the Microsoft pipes screensaver, a navy blue screen, and other "avant garde" programming? They aren't going to get into the business of "this is quality programming and that is not" business, are they?
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Anonymous Coward, 26 May 2016 @ 12:32pm

Re: Re: Re: You keep using those words...
Will you and your friends stand for office, and on a reform platform? If not, you are complaining that people are selecting from the available candidates, rather than the non existent reformers of government.
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Anonymous Coward, 26 May 2016 @ 1:14pm

Re: Re: Re: Re: Re: This almost never goes wrong.
I would say financially...definitely. More speakers equals bigger potential market.

Artistically and in terms of the quality of the movie, it doesn't matter what the language is
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Rekrul, 26 May 2016 @ 4:55pm

Yup, it will be a glorious day when control of the internet is wrestled away from the evil USA and handed off to the more trustworthy world in general!
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PaulT (profile), 26 May 2016 @ 11:31pm

Re: The Artist's Fair Share
Nice idea. Guess who's created contracts with the artists so that they often literally can't do that? RIAA/MPAA members, of course...
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Anonymous Coward, 30 May 2016 @ 3:40am

Local content
living in a country that is not the US i believe, local content quotas are important. sure you get some poor quality shows, however this is less of a risk than the permiation of American spelling phrases and beliefs into OUR culture, already riddled with americanisms
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Dave Cortright (profile), 30 May 2016 @ 6:48am

Re: Local content
If you want to encourage local content, there are plenty of other ways to incent the market. Give local producers tax breaks, grants, and other incentives. Hold contests. Find locals already doing great work and invest in them.

IANAE (I am not an economist) but I highly doubt holding a gun to the head of the platforms who are only trying to connect people with quality content is the way to go.
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PaulT (profile), 31 May 2016 @ 12:57am

Re: Re: Local content
The problem is when foreign interests have a stranglehold on distribution. I think the things you're referring to would be on the backend of producing the content. That's not necessarily the problem, the issue is whether that content gets seen or is burying under a glut of Hollywood material. Especially a potential problem in a market dominated by the likes of Netflix who are more interested in getting their own original content seen than they are in the works of a more minor EU territory.

"platforms who are only trying to connect people with quality content"

Correction - *profitable* content. That inevitably means that major American content gets dealt with favourably, potentially at the expense of local content. No matter how good a, say, Portuguese movie is it will be overshadowed by the new Marvel movie.

I think most people are open to alternatives other than artificial quotas, but this is somewhere the free market is always going to fail the local content, especially where the distribution is being controlled by international interests.
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