No Agreement Made On EU Copyright Directive, As Recording Industry Freaks Out About Safe Harbors Too

from the maybe-dump-article-13 dept

Thu, Dec 13th 2018 2:39pm — Mike Masnick

Today was the latest set of "Trilogue" negotiations for the EU Copyright Directive, between the EU Council, the EU Commission and the EU Parliament. When the trilogues were first scheduled, this was the final negotiation and the plan was to hammer out a final agreement by today. As we've been reporting lately, however, it still appeared that there was massive disagreement about what should be in Article 13 (in particular). And so, today's meetings ended with no deal in place, and a new trilogue negotiation set for January 14th. As MEP Julia Reda reports, most negotiators are still pushing for mandatory upload filters, so there's still a huge uphill battle ahead -- but the more regulators realize how disastrous such a provision would be for the public, the better.

Also worrisome, Reda notes that after the Parliament rejected Article 13 back in July, MEP Axel Voss agreed to add an exception for small businesses that helped get the proposal approved in September. Yet, in today's negotiations, he agreed to drop that small business exception, meaning that if you run a small platform that accepts user generated content, you might need to cross the EU off your list of markets should Article 13 pass.

One other important thing. Earlier this week, we noted that the TV, film and sports legacy companies were complaining that if Article 13 included a basic safe harbor (i.e., rules that say if you do certain things to remove infringing content, you won't be liable), then they no longer wanted it at all -- or wanted it to just be limited to music content. That suggested there might be some separation between the film/TV/sports industries and the music industries. But, no. Right before the trilogues, the legacy recording industries released a similar letter:

The fundamental elements of a solution to the Value Gap/Transfer of Value remain, as acknowledged by all three institutions in their adopted texts, to clarify that UUC services now defined as Online Content Sharing Service Providers (“OCSSP”) are liable for communication to the public and/or making available to the public when protected works are made available and that they are not eligible for the liability privilege in Article 14 of the E-Commerce Directive as far as copyright is concerned. We continue to believe that only a solution that stays within these principles meaningfully addresses the Value Gap/Transfer of Value. Moreover, licensing needs to be encouraged where the rightsholders are willing to do so but at the same time not be forced upon rightsholders.

Therefore, proposals that deviate from the adopted positions of the three institutions should be dismissed.

Unfortunately, for a number of reasons, the text now put forward by the European Commission would need fundamental changes to achieve the Directive’s aim to correct the Value Gap/ Transfer of Value.

For example, solutions that seek to qualify or mitigate the liability of Online Content Sharing Service Providers should be considered with an abundance of caution to avoid the final proposal leaving rightsholders in a worse position than they are in now. Any “mitigation measures”, should they be offered to OCSSPs, must therefore be clearly formulated and conditional on OCSSPs taking robust action to ensure the unavailability of works or other subject matter on their services.

This is pretty incredible when you get past the diplomatic legalese. These music companies are flat out admitting that the entire goal of this bill is to hit internet companies with crippling liability that makes it literally impossible for them to host any user generated content. This isn't -- as they claim -- about a "value gap" (a made up meaningless term). Rather this is the legacy entertainment industry going all in on an attempt to change the internet from a platform for the public, to a locked up platform for gatekeepers. In short, they want to take the internet and turn it into TV. Europe should not let this happen.

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Filed Under: article 13, copyright, eu, eu copyright directive, intermediary liability, safe harbors

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That One Guy (profile), 13 Dec 2018 @ 2:28pm

"Just under the rib cage!" "No, through the arm-pit!"
I can't help but find it rather funny that the main stumbling block to this legislative disaster is a fight over how exactly to screw over the public, and how much, with objections being lodged that it's not bad enough holding it up. Nice to have their petty contempt of the public actually working in the public's favor for once.

Hopefully they'll bicker long enough for enough pushback to occur to kill the thing entirely, or refuse to accept it unless it's extreme enough, killing it that way.
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JD, 13 Dec 2018 @ 2:47pm

Filters to prevent music/video sampling
I can only assume that the legacy industries would also support filters built in to A/V hardware and software which would automatically detect when someone is attempting to create a musical or video composition which is similar to an existing book, song, movie, story, or other copyrighted work, and block them from doing so, full stop.

Paid the licensing fee? Too bad. Maybe create something of your own next time. Recording a cover of a song where parts of it are in the public domain? Too bad. Maybe create something of your own next time. Filming a remake of a movie that already exists, and you're the owner of the original? Too bad. Maybe create something of your own next time. The thing you're creating is your own but the technology accidentally thinks it's similar to something someone else already created? Too bad. Maybe create something more of your own next time.
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Anonymous Coward, 13 Dec 2018 @ 2:47pm

Thank god the UK is leaving this clusterfuck behind.

EU won't have internet. It will only effectively have TV via ethernet and wifi with NO individual user being able to do so much as post a text message to a forum without a billion dollar corporation allowing them to do so.
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Anonymous Coward, 13 Dec 2018 @ 3:12pm

Re:
In other news, end-to-end encryption services and VPN usage will skyrocket in the EU.

Isn't Facebook already on TOR?
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Anonymous Coward, 13 Dec 2018 @ 3:18pm

The copyright fascists freak out when "legal due process" is required.... they think one unsupported accusation from themselves ought to enslave the accused forever.
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Stephen T. Stone (profile), 13 Dec 2018 @ 3:20pm

“But…but think of the content creators who would really be hurt if this doesn’t pass—you know, Disney, Warner Bros., and the like!”
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Anonymous Coward, 13 Dec 2018 @ 3:38pm

This is exactly what is going to happen if Silicon Valley does not get its act together and stop all the HATE driven policies.
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That One Guy (profile), 13 Dec 2018 @ 3:41pm

Re:
Starting to sound like a broken record, but so long as it applies...

[Citation Needed].
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Anonymous Coward, 13 Dec 2018 @ 3:48pm

Re: Filters to prevent music/video sampling
It not the creation of new works that they object to, but rather the ability of people to self publish. I mean, how is a gate keeper to decide what culture is, if they cannot select a fraction of a percent of creative works that they will publish for their own profit. The more creators that are competing for a chance to get their work published, the easier it is for the publishers to get them to sign exploitative contracts.
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Anonymous Coward, 13 Dec 2018 @ 4:59pm

Re:
Hey Jhon you got a full nappy.

What happened to that bombshell report on mikes finances bro?
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Anonymous Coward, 13 Dec 2018 @ 5:26pm

Re:
Which policies, specifically, are those?
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Anonymous Coward, 13 Dec 2018 @ 6:02pm

Response to: Anonymous Coward on Dec 13th, 2018 @ 2:47pm
Yeah, they can create their own clusterfuck, like other larger nations.
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PaulT (profile), 13 Dec 2018 @ 10:58pm

Re:
If you're under the impression that the current string of muppets in the UK won't be desperate to cut shitty deals all over the place and won't be coming up with something far worse, you really haven't got a clue what's going on.
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PaulT (profile), 13 Dec 2018 @ 11:00pm

Before the uneducated come in with their lies again, let's reiterate - "safe harbours" is short hand for "you have to prosecute the people who committed the crime, not the people who happen to own the land on which they committed it".

Being anti-safe harbours is merely an attempt to go after the nearest easy target rather than do the work of actually stopping infringement. That's what you're supporting if you oppose it.
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Anonymous Coward, 14 Dec 2018 @ 1:53am

Facebook on Tor
Yes they are, at facebookcorewwwi.onion. And it was this occurrence and their support that allowed tor to have .onion assigned as a "reserved name". i.e nobody can register .onion as a top level domain.
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Anonymous Coward, 14 Dec 2018 @ 3:40am

Re: Re: Filters to prevent music/video sampling
The promise of independent publishing making the "legacy" industry irrelevant did not materialize, because people want the gatekeepers to validate and give credentials to the creators of works.

That is a problem of distribution, branding, and the public's refusal to think for itself.
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Anonymous Coward, 14 Dec 2018 @ 3:41am

Re:
If the landowner enables the crimes, then the landowner should be liable.
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PaulT (profile), 14 Dec 2018 @ 4:10am

Re: Re:
Define "enables". No, having land available and then misused without their knowledge doesn't count.

Landowner has a deal with gangsters to use his land to dump dead rivals? Sure, have at him on conspiracy charges. Gangsters use a bit of empty ground to dump the bodies without the owner's knowledge? No, you should not get to prosecute the landowner for murder just because it's easier to find him than it is the actual killers.

Also, if you support removal of safe harbours for online services but don't also demand that mail, car rental and phone companies are held directly liable for illegal use of their services, you're a hypocrite and a fool.
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Filipescu Mircea Alexandru, 14 Dec 2018 @ 4:13am

An absolute joke
They're literally taring each other apart at this point. It would be hilarious if it wasn't horrifying. They got much too greedy, demanded the outright impossible... now they've reached the point where it's all falling apart and they have only themselves to blame. We will not allow them to shut down the open internet to appease the greed of the entertainment industry, that dystopian fantasy went on for far too long: Remove Article11 and Article13 and let's look for real solutions!
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Anonymous Coward, 14 Dec 2018 @ 5:15am

Re: Re:
Agreed. When are you going to see the RIAA punished for the music files pirated under their IP address?
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Anonymous Coward, 14 Dec 2018 @ 5:18am

Google has already says it will only allow certain users to upload videos, if article 13 is passed .
I think most videos containing music will simply be muted unless they are posted by nbc, mtv,vevo, etc
Even google cant afford to pay the cost if it was to be sued for millions of videos,
that contain a few minutes of music .
The present system sort of works,
a company can simply choose to take all ad revenue from a video or take down the video if it claims its infringing.
The user can choose to reupload the video and remove the music from it .
So basicly the record companys are going after
youtube to make them liable for all content.
Even though youtube pays billions to host music videos on vevo and other youtube accounts.
The legacy companys want to turn the internet
into cable tv or itunes , you can only watch
what is licensed and paid for even though this
will block most content from small creators, artists ,singers .
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PaulT (profile), 14 Dec 2018 @ 5:36am

Re: Re: Re:
At the very least proper punishment for falsely claiming someone else's work as their own and having that artists blocked from earnings.

You know, demonstrable losses rather than the ""what if" crap that the RIAA's statements depend on.
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Anonymous Coward, 14 Dec 2018 @ 8:26am

Re: Re: Re: Filters to prevent music/video sampling
Your points although valid, do not refute the OP claims.
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Gary (profile), 14 Dec 2018 @ 8:30am

Re: Re:
My monitor enables me to watch pirate content - so obviously Asus is liable for damages.
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Anonymous Coward, 14 Dec 2018 @ 8:30am

Re: Re:
Liable only for their contribution to the "crime", not entirely responsible while the real crooks walk, which is what they apparently want.
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Anonymous Coward, 14 Dec 2018 @ 8:31am

Re: An absolute joke
" literally taring each other "

I would pay to see this.
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Peter (profile), 14 Dec 2018 @ 8:31am

How about the Rightsholders do their homework for a change?
Before requiring that others respect copyright, how about the rights holders figure out who owns it? We have seen with "Happy Birthday" (Warner cashing in for a copyright they did not own) and "Peltham vs Kraftwerk" (two rightsholders and several courts arguing for two decades about the copyright for a 2-second music sample) that even the rights holders don't know who owns the rights to specific works.

As with Article 13, rights holders and collection societies are very happy with the situation - they collect the money, and, eh, look after it in case somebody comes along and claims it.

Before we even start talking about third parties respecting rights, somebody needs to work out what rights exist, who owns them, and exactly what is protected.

The current situation where anybody can come out of the woods and send demand letters claiming to own rights is bad enough; giving those letter senders the benefit of doubt, and putting the burden of proof on intermediaries is not only sheer madness, it is hard to see how it might serve the creatives or the public.
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Anonymous Coward, 14 Dec 2018 @ 8:33am

Re: How about the Rightsholders do their homework for a change?
"how about the rights holders figure out who owns it"

Easy - they own everything and you own nothing.
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Anonymous Coward, 14 Dec 2018 @ 9:04am

Re: Re: Re: Filters to prevent music/video sampling
Changes in culture take time, and while some of the older generations make the changes, the big shifts wait the younger generations to take over, and the YouTube generation is still in education.
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Anonymous Coward, 14 Dec 2018 @ 9:13am

Re: Re: How about the Rightsholders do their homework for a chan
That is the whole psychology of ALL the internet / computer companies. They own everything no-one else owns anything.

That is also the psychology of big banks and money creation.
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Anonymous Coward, 14 Dec 2018 @ 9:25am

Re: Facebook on Tor

it was this occurrence and their support that allowed tor to have .onion assigned as a "reserved name"

They were also the first ones to get an SSL certificate for an onion domain. They had to work with a CA to figure out the process: https://www.facebook.com/notes/protect-the-graph/making-connections-to-facebook-more-secure /1526085754298237

One of the stated reasons for having a Tor site was to improve accessibility (the implication being that some networks were blocking Facebook).
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Pop Ulist, 14 Dec 2018 @ 9:27am

Re: "safe harbors" is corporatist code for "above the law".
A) The very term does not apply in print media. Section 230 in US, other law in Europe, made NEW exemptions for what was previously illegal.

B) "safe harbors" were made for The People to easily access / use The Internet, not so that corporations could "monetize" copyrighted products without liability, besides arbitrarily control access to / use of the new "platforms" to suppress speech that doesn't fit corporate interests of gaining money without responsibility to society.

C) We now have PLENTY of evidence that piracy and corporate grifting off copyrighted products results from the current arrangement.

D) The creators are not being rewarded at all, usually, let alone fairly.

E) Google, the favorite corporation here because "sponsors" Masnick, gets to use links and other valuable content for free (especially on Youtube). -- No, it doesn't pay the creators by sending them traffic: Google / Facebook also suck up nearly all the advertising revenue. Any left for the originators is entirely by chance.

F) There's nothing holy or sacred about the current arrangement: it's NOT the only way that teh internets can work. Masnick / Techdirt and the pirates favor the current unfairness because advantages them against the people who produce the content that they grift off / steal from.
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Pop Ulist, 14 Dec 2018 @ 9:33am

Re: How about PIRATES STOP STEALING?
You do some rambling that's very little applicable.

Fact is that Copyright is firmly in the body of Western law, and it defines unauthorized viewing / enjoyment of copyright products as illegal.

Pirates, like other thieves, don't actually have any rights nor any basis in morality to bargain against producers. Problem is simply that pirates are difficult to catch and prosecute without much disruption to innocent people. Pirates are effectively using non-thieves as hostages so that they get entertainments for free. It's pirates who are outside of Law.
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Anonymous Coward, 14 Dec 2018 @ 10:14am

Re: Re: "safe harbors" is corporatist code for "above the law".
Why should the publishers/labels/studios, who control a small fraction of the creative output of humanity be allowed to remove the means by which most creators, and by most I mean 99% plus of them, find an audience?
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Gary (profile), 14 Dec 2018 @ 1:05pm

Re: Re: "common law" is code for "troll".
A) Print Media doesn't allow people to make comments on printed newspapers in realtime - so yeah, for one you are right and 230 doesn't apply.
B) Nope - 230 was actually made to allow companies to moderate user content. Please site your version of 230.
C) Vague but people with money do pay for laws. Not just corporations.
D) In what sense?
E) Please show evidence of this?
F) On the other hand, your dogma of muf freeze peach is sacred, eh?
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Gwiz (profile), 14 Dec 2018 @ 1:29pm

Re: Re: Re:

Section 230 in US, other law in Europe, made NEW exemptions for what was previously illegal.

No, not really. Supermarkets have always had the right to moderate what is put up on their "public facing" bulletin boards in their "public" lobbies.

Please explain why should be any different, just because it's online.
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Gwiz (profile), 14 Dec 2018 @ 1:44pm

Re: Re: Re: Re:
I should also add, I don't believe (although I've never really researched this angle) we have ever held supermarkets responsible for the speech that others place on their bulletin boards, either.
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Anonymous Coward, 14 Dec 2018 @ 4:54pm

Re: Re:
So you would advocate that Warner return the money they took from Happy Birthday?
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PaulT (profile), 15 Dec 2018 @ 3:27am

Re: Re: Re: How about the Rightsholders do their homework for a
He says, without a shrewd of irony, while using free software and free protocols to write his message without even considering payment to those who have him that ability...
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Anonymous Coward, 15 Dec 2018 @ 4:44am

Re: Re: How about PIRATES STOP STEALING?
Actually, making copies is what is illegal, sell, lend or give a copy that you legally obtained to somebody else and you are well within the law, and if you sell or give the copy away the new owner is free to do the same.
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Anonymous Coward, 15 Dec 2018 @ 11:55am

Re: Re: How about blues fuck off
Why are you still here?
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nasch (profile), 17 Dec 2018 @ 9:55am

Re: Re: How about PIRATES STOP STEALING?

Fact is that Copyright is firmly in the body of Western law, and it defines unauthorized viewing / enjoyment of copyright products as illegal.

By viewing / enjoyment, do you mean copying / distribution? Because that is what copyright law is actually concerned with.
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PaulT (profile), 17 Dec 2018 @ 11:14am

Re: Re: Re: How about PIRATES STOP STEALING?
He does mean that. But if he admits that things like borrowing a disc from friends and reselling books with no additional payment to the original author have always been legal, it shoots his totalitarian aims down rather quickly. Then, of course, once he has to follow that down the road with facts like the real theft being committed by the corporations he supports (retroactively removing titles from the public domain, removing income from artists by pretending the most successful movies ever mad have never turned a profit, etc.), he can't reach any conclusion other than the system reform everyone else is really asking for.

No, his entire argument is predicated on fiction, and he needs to keep up the act. Even when that means making laughable claims that aren't supported by reality.
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Anonymous Coward, 1 Jan 2019 @ 6:40pm

Re: Re: Re: Re: Filters to prevent music/video sampling
The Fat Rat is educating them now.
https://www.youtube.com/watch?v=z4AeoAWGJBw
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