Clash Of EU's Poorly Thought Out Laws: German Data Protection Commissioner Warns That Article 13 Might Violate GDPR

from the fight-fight-fight dept

As we've been noting recently, the EU really seems to be bending over backwards to pass poorly thought out laws about the internet (sometimes, though not always, with the best of intentions). For example, the GDPR certainly seems to have good intentions behind it, but in practice it has been a disaster in many specific cases, where it seems obvious that those who crafted the law simply ignored warnings about how it would intersect with real world situations -- especially those regarding free speech. Then, of course, there's the EU Copyright Directive and Article 13, where as far as I can tell, the EU is rushing forward with this effort, knowing that it's awful, because the entire point of the law is to be so awful that internet companies are pressured into grovelling before Hollywood not to sue them for violating a law with which it is literally impossible to be in compliance with.

Of course, in a bit of irony, at least one German official is recognizing that the intersection of these two laws may, in fact, cause some significant concerns. Despite what supporters have said about Article 13, it will require that most online platforms use upload filters. While supporters insist the law does not say that, when pressed on this issue, they only note that filters are one way to try to comply, and basically say that tech companies might need to "nerd harder" to come up with alternatives. However, in all practicality, this law is a giant government handout to filter companies. Indeed, as we noted, some of the strongest lobbying in favor of Article 13 came from Audible Magic, which is the recognized leading independent upload filtering company (many, many other companies use its technology, with the one major exception being Google, which built its own filtering tech).

TorrentFreak points us to a letter to the EU Parliament from Germany's Data Protection Commissioner (basically, the person in charge of enforcing the GDPR), warning that since there are so few filter companies, and Article 13 will more or less mandate their usage, it will raise significant concerns about all the data those companies (really: Audible Magic) will collect on people and their internet habits. The letter was first translated into English by Florian Mueller, who received an official "approval" from the German Federal Commissioner that his translation was accurate.

The letter starts off by brushing away the silly claim that Article 13 won't require filters:

The Federal Commissioner for Data Protection and Freedom of Information, Ulrich Kelber, therefore warns against the potential consequences of the reform in question: "Even though upload filters are not explicitly mandated by the bill, they will be employed as a practical effect. Especially smaller platform operators and service providers will not be in a position to conclude license agreements with all [copy]right holders. Nor will they be able to make the software develoment effort to create upload filters of their own. Instead, they will utilize offerings by large IT companies just the way it is already happening, for one example, in the field of analytics tools, where the relevant components created by Facebook, Amazon and Google are used by many apps, websites, and services."

From there, Kelber notes that with so few filter vendors on the market, significant data protection concerns are raised about the government mandating these companies basically sift through the entire internet:

"At the end of the day, this would result in an oligopoly consisting of a few vendors of filtering technologies, which would then be instrumental to more or less the entire Internet data traffic of relevant platforms and services. The wealth of information those vendors would receive about all users in the process is evidenced by, among other examples, current media coverage of data transfers by eHealth apps to Facebook."

Therefore, the Federal Commissioner for Data Protection and Freedom of Information sees a clear and present danger of a further concentration of data in the hands of an oligopoly of vendors as an adverse effect of the present EU proposal. Against the background of the decision the Federal Cartel Office [Germany's national antitrust authority] handed down against Facebook a few weeks ago, the objective should actually be to achieve the opposite [of such concentration of data].

Ulrich Kelber calls for further steps to be taken to avert the previously-outlined scenario: "If the EU believes platform operators can meet their new obligations [under the proposed copyright directive] without upload filters, it must make a clear showing. That is why I am awaiting with great interest the [European] Commission's forthcoming recommendations. In the other event, data privacy considerations require a thorough overhaul of the bill. Notwithstanding the need to update the protection of author's rights in our times, such a measure must not harm or compromise the protection of Internet users' data."

In other words, it looks like Article 13 in the EU Copyright Directive might run headlong into the GDPR's restriction on the collection and use of data. This kinda feels like something that should have been thought out way earlier, but seems consistent with the slapdash manner in which the EU is regulating the internet these days: with little to no understanding of how the internet actually works, demands to do the impossible, and threats of massive fines for any company that then fails to do the impossible. This is no way to actually regulate, but apparently it's par for the course in the EU right now.

Filed Under: article 13, copyright, data protection, eu, eu copyright directive, gdpr, germany, monopoly, upload filters
Companies: audible magic

There Was Heavy Tech Lobbying On Article 13... From The Company Hoping To Sell Everyone The Filters

from the lobbyist-influence dept

One of the key themes we've been hearing for years now concerning the EU's awful Article 13 section of the EU Copyright Directive, was that no one should pay any attention at all to the critics of Article 13, because it's all just "big tech lobbying" behind any of the criticism. In the past, we highlighted a few of these claims:

Here's Geoff Taylor from BPI:

The US tech lobby has been using its enormous reach and resources to try to whip up an alarmist campaign...

And here's Richard Ashcroft from PRS for Music:

the Internet giants... have whipped up a social media storm of misinformation about the proposed changes in order to preserve their current advantage.

And how about UK Music's Michael Dugher who really wants to blame Google for everything:

Some absolute rubbish has been written about the EU’s proposed changes on copyright rules.

Amongst the ludicrous suggestions from the likes of Google is the claim that the shake-up will mean the end of memes, remixes and other user-generated content. Some have said that it will mean ‘censorship’ and even wildly predicted it will result in the ‘death of the internet’.

This is desperate and dishonest. Whilst some of the myths are repeated by people who remain blissfully untroubled by the technical but crucially important details of the proposed EU changes, in the worst cases this propaganda is being cynically pedalled by big tech like Google’s YouTube with a huge vested and multi-million-pound interest in this battle.

However, as we wrote about back in December, an analysis that looked at the actual lobbying efforts around copyright in the EU found that it was done overwhelmingly by the legacy copyright industries, and only sparingly by the tech companies. In that post, I went through a spreadsheet looking at the lobbying of the EU Commission, and found that over 80% of the meetings were from the entertainment industry.

However, as is coming out now, there was definitely one "tech" company that was one of the most aggressive lobbyists on Article 13. However, it was lobbying in favor of it, and that's because it knew that Article 13 would lead to an artificial, but highly inflated demand for internet filters. And that's the company known for building the filtering technology behind nearly all of the non-ContentID copyright filters: Audible Magic.

Law professor Annemarie Bridy recently posted a detailed Twitter thread of Audible Magic's lobbying activities regarding Article 13. It's easy to see why the company did so, because the law, if put into effect, would be a huge, huge benefit for Audible Magic, more or less forcing nearly every internet platform of a decent size to have to purchase Audible Magic's technology. Indeed, in the run-up to Article 13, we heard directly from policymakers in the EU who would point to Audible Magic as "proof" that filtering technology was readily available for not much money and that it worked. Neither of these claims are accurate.

On the fees, Audible Magic has a public pricing page that has been frequently pointed out by supporters of Article 13, often with the claim "fees start as low as $1,000 per month." But... that's not accurate. The $1,000 only applies to "on device" databases. Hosted databases start at $2,000 per month, which is already double that... and the $2,000 per month only covers very low levels of usage. Indeed, the usage rates are so low that it's unlikely to think that any company that used Audible Magic at that rate would be making very much (if any) money at all -- meaning that relatively speaking, Audible Magic would be a huge margin killer. And the rates quickly go up from there. Indeed, on Audible Magic's pricing page, as soon as you get to a level that one might consider "sustainable" for a business, the prices become "contact us."

A few years back I spoke with one mid-sized streaming company, who told me Audible Magic was quoting them fees that were between $30,000 to $60,000 per month. An academic paper from 2017 found pricing to be slightly lower than what I had heard, but still quite expensive:

Commercial fingerprinting and filtering services, such as Audible Magic and Vobile, do not publicly release pricing. But we can guess at the ballpark: one medium-sized file hosting service reported that its license for Audible Magic filtering cost $10,000-12,000 per month in 2011 (though this provider was later able to negotiate a reduced rate based on the amount of content flagged through the system). Another estimated that Audible Magic cost its service roughly $25,000 per month. OSPs noted that the licensing fees are just the beginning. Filtering systems, several OSPs noted, are not turnkey services. They require integration with existing systems and upkeep as the OSP takes on new mediation roles between rightsholder and user (such as tracking and managing user appeals).

In other words, those things get really pricey quickly -- such that it becomes untenable for all but the largest of service providers.

And that leads us to the second part, about whether or not they work. As we've been detailing for years, the answer is clearly no. These fingerprinting technologies make both false positive and false negative errors all the time. We probably have a few examples sent our way every single day. Incredibly, the very lobbying video that Bridy points out Audible Magic created as part of its lobbying effort says that Audible Magic's technology is accurate to about 99%.

Last summer, we highlighted that Alec Muffett created a "simulator" that would look at the the error rates on such filtering technology -- and it noted that if you went with an accuracy level of 99.5% (higher than even Audible Magic claims) and ran it across 10 million pieces of content, you'd end up censoring approximately 50,000 pieces of content that were non-infringing. 50,000. And that's assuming the technology is even more accurate than even Audible Magic will claim.

And, of course, that's solely discussing the matching accuracy. It says absolutely nothing about understanding user rights -- like fair use, fair dealing, parody, etc -- none of which Audible Magic takes into account (meaning even more non-infringing works would get censored).

And, yet, as Bridy shows, Audible Magic has been lobbying hard for this:

It's not surprising that they'd lobby for such a thing. I mean, which company wouldn't lobby for a new law that would effectively require thousands of internet companies to buy your product for which there is little to no real competition (oh yeah, which almost certainly means Audible Magic would likely raise prices once the government required everyone to buy its filters).

Bridy highlights that their lobbying claims are complete bullshit as well:

Quite incredible that they highlight the "voluntary" nature of the filters while lobbying for making their technology required under law. And equally ridiculous that they claim that intermediary liability protections some how create "barriers" for online services. That, as Bridy points out, is exactly the opposite of reality. Safe harbors create clear rules that platforms understand so they know what they need to do to set up a legit platform. Removing those rules, as Article 13 does, and requiring expensive (and terrible) technology is a huge barrier, as the cost is prohibitive for most.

There's more in that thread, but as Bridy shows, Audible Magic's own presentation shows that it knows who the "winner" of Article 13 will be: Audible Magic inserting itself to become the de facto "copyright filter" layer of the internet:

So, yeah, there was some "tech" lobbying for Article 13 and its mandatory filters. It was just coming from the biggest supplier of those filters.

Filed Under: article 13, censorship, copyright, eu, eu copyright directive, filters, lobbying, mistakes
Companies: audible magic

Facebook Announces Its ContentID Attempt... Using Audible Magic

from the because-of-course dept

A few weeks ago we noted that it appeared that Facebook was building its own ContentID system to try to takedown videos copied from elsewhere... and voila, here it is. Facebook has now announced its new system, which is powered by AudibleMagic -- the same company that powers every other such system that is not Google's ContentID. Audible Magic is the "default." It's basically the "buying IBM" of content/copyright filtering. And it tends to be pretty bad. Facebook notes that its videos are already run through Audible Magic and that has basically done nothing. So they're "working with Audible Magic to enhance the way the system works."

We'll see what that means in practice, but I expect there will be plenty of false positives and complaints about people's perfectly legitimate videos getting taken down. But, that's what happens when you live in a world where people censor first and ask questions later. Even worse, it appears that some of the new tools will only be available to a special class of Facebook users:

To this end, we have been building new video matching technology that will be available to a subset of creators. This technology is tailored to our platform, and will allow these creators to identify matches of their videos on Facebook across Pages, profiles, groups, and geographies. Our matching tool will evaluate millions of video uploads quickly and accurately, and when matches are surfaced, publishers will be able to report them to us for removal.

We will soon begin testing the beta version of this matching technology with a small group of partners, including media companies, multi-channel networks and individual video creators.

It's clear why Facebook is doing this, but it seems that following Google down this path is a pretty weak solution, rather than building something better, that doesn't take a "censor first" approach to things.

Filed Under: contentid, copyright, infringement, takedowns
Companies: audible magic, facebook

Twitch Begins Silencing Videos With Audible Magic: Making Everyone Worse Off, Because Copyright Law Sucks

from the not-how-to-do-it dept

As a whole bunch of people on my Twitter feed are letting me know, video game streaming company Twitch* (read disclosure below!) has announced that it has turned on Audible Magic to begin silencing "Video on Demand" videos that make use of copyright-covered music -- including in-game music. This only covers the video on demand (stored) videos, rather than the live streams that Twitch is probably most well known for. As Twitch's General Counsel Boo Baker explains:

We’ve partnered with Audible Magic, which works closely with the recorded music industry, to scan past and future VODs for music owned or controlled by clients of Audible Magic. This includes in-game and ambient music. When music in the Audible Magic database is detected (“Flagged Content”), the affected portion of the VOD will be muted and volume controls for that VOD will be turned off. Additionally, past broadcasts and highlights with Flagged Content are exportable but will remain muted.

The Audible Magic technology will scan for third party music in 30 minute blocks — if Audible Magic does not detect its clients’ music, that portion of the VOD will not be muted. If third party audio is detected anywhere in the 30-minute scanned block, the entire 30 minutes will be muted.

This, quite reasonably, has many folks up in arms -- with Felicia Day making the point in the most humorous of ways: "So Twitch has become a silent movie company now?" That's because pretty much every video game has some music, and it's unlikely (at best) that users of Twitch cleared that music. In the past, we've seen some similar issues with YouTube's ContentID system flagging similar "Let's Play" videos on that site.

Really, what this seems to demonstrate is the failure of the "one-size filter fits all" world that the legacy content industry lives in. The music and movie industries have long demanded such filters, sometimes arguing (though failing) that the current DMCA requires filters like Audible Magic or Content ID. US copyright law currently does not require such a thing, though you know that the industry is pushing hard to get that into any copyright reform bill. And, for all the problems of ContentID (and there are many), it's the kind of solution that you can see often does make sense in a YouTube world (though it has way too many false positives).

However, when it comes to Twitch, this kind of solution seems to make no sense at all. People are not going to Twitch to hear music. They're going to see video games. In fact, this kind of solution on Twitch seems inherently counterproductive for just about everyone. These days musicians want their music in video games because it's fantastic for those musicians, both making them money and giving them a ridiculous amount of exposure. There are even entire discussions for indie musicians about how to get their music into video games because it's such an important promotional avenue.

Those musicians aren't hurt by Twitch videos. They're hurt by silent Twitch videos, meaning fewer people hear the music.

A fairly strong case can be made that in-game and ambient video game music on Twitch is fair use. It seems to be clearly transformative in the same sense that scanning whole books to create a searchable index is transformative fair use or that a book of magazine covers of movie monsters is transformative fair use, or that a book of concert posters is transformative fair use. In each case, while the entire work is used, and the original may have been licensed, the use here is for an entirely different purpose.

And yet, with this move, Twitch seems to be inherently stating that fair use for the audio is an afterthought, rather than a key component to what it's doing.

Given the various lawsuits against other video sites, it's quite likely that Twitch was facing serious legal pressure to make this move. As we've noted, the music industry has repeatedly made arguments in other lawsuits that such filtering was necessary. Just recently, video site Vimeo announced it, too, was using Audible Magic. And, for years, legacy content players have insisted that using such a tool was required.

But it's not. There's nothing in the law that requires a site to do this. And even if you can make the case that it makes sense for general interest user-generated video sites, that's simply not the case with Twitch, whose whole purpose is to stream video from video games. It's yet another case of taking a broad maxim ("video sites should use automated filtering to silence or take down "copyrighted" material") to extreme and ridiculous ends where it doesn't make sense at all.

In other words, it's another example of the pressures and risks of today's copyright laws getting in the way of a useful innovation, leading to a result that is actually worse for everyone.

From a pure "avoiding liability" position, you could see why Twitch would make this decision. Assuming that some recording industry lawyers were pressuring the company, arguing that continuing to allow those videos without a fingerprinting solution put it at risk of losing its DMCA safe harbors. Because that's the kind of argument an RIAA or an ASCAP might make. And this is really a big part of the problem with copyright law today (and especially statutory damages). Even if Twitch believes that not having such a tool is okay, it might still get taken to court and could face a massive judgment if a court decides the other way. Thus, all of the ridiculous incentives of copyright law today push Twitch to make use of this solution that, without any question, makes everyone worse off. It harms musicians. It harms Twitch. It harms video game fans. It harms Twitch's users. It harms video games. Who does it benefit besides Audible Magic and maybe some lawyers?

Copyright remains totally broken.

* Disclosure: As you may know, just a couple of weeks ago, Twitch announced that they were providing matching donations for our net neutrality crowdfunding campaign, something we are quite thankful for. That said, the company's support of that effort doesn't change our views at all on this being a dumb move that harms everyone.

Filed Under: copyright, fair use, filtering, fingerprinting, lets play, music, streaming, video games
Companies: audible magic, twitch

Vimeo Pressured Into Setting Up Its Own Content ID

from the via-audible-magic dept

The legacy copyright industry has been pushing for years to make automatic fingerprinting and blocking a requirement under the law. In fact, many lawsuits from both the record labels and movie studios have argued that automated fingerprinting is already a requirement under the law -- though, those legal arguments have been consistently rejected. For example, in the record labels lawsuit against Vimeo for allowing "lipdub" videos, the labels have been claiming that Vimeo's failure to offer an automated system for filtering out copyright-covered works amounted to "willful blindness." While the court rejected that argument wholeheartedly, noting that the law makes "clear that service providers are under no affirmative duty to seek out infringement," it appears Vimeo has decided to do so anyway.

On Wednesday, Vimeo announced its new Copyright Match tool. Like basically every non-Content ID filter out there, this one relies on technology from Audible Magic, which doesn't necessarily have the best reputation. Vimeo seems to bend over backwards to insist that it will allow fair use... but it appears they're still taking a "takedown first and review later" approach to it. If your work is blocked, you can claim fair use, and then wait for Vimeo to determine if they agree with you or not -- even if the copyright holder never complained about the work.

In other words, it's another step towards permission culture, rather than allowing the sort of permissionless creativity and innovation that is so important today.

Filed Under: content id, contente match, copyright, creativity, fair use, filters, permission
Companies: audible magic, vimeo

Belgian Court Realizes That ISPs Shouldn't Be Forced To Block File Sharing

from the about-time dept

A year and a half ago, we wrote about a Belgian court requiring an ISP to block all file sharing, and saying that after six months to implement a filtering solution, the ISP would be fined 2,500 euros per day that file sharing still occurred on its network. The court had been convinced by the IFPI that blocking all file sharing was as simple as installing the filtering software from the entertainment industry darling, Audible Magic. Of course, as has been seen over and over again, Audible Magic's "magic bullet" solution isn't particularly good, and certainly does very little to stop file sharing. Apparently, Belgian ISPs have finally been able to convince the judge of that fact, and he's reversed the original ruling, saying that the ISP in question is no longer subject to the fine. Apparently, even the recording industry lawyers had to admit that they misled the court over the efficacy of Audible Magic's filtering software.

Filed Under: belgium, filtering, isps
Companies: audible magic, ifpi, riaa

Studios Unveil Meaningless 'Guidelines' For User Content Sites

from the audible-magic-full-employment-agreement dept

There's a lot of talk about the new "guidelines" that were announced today mainly by the big television studios, along with a few smaller players in the online video space. The press coverage highlights two things: this is a big deal and it's notable that Google didn't agree to join. I'm not sure either thing is really true. Reading through the actual principles, about the only thing that's noteworthy is how pointless they are. If anything, they're basically a "full employment for Audible Magic" document in that they require companies to install the type of filters that Audible Magic is selling (though, it's still questionable how well they work). There are some totally meaningless statements about supporting fair use, but no details on how that's actually to be done. In other words, these principles are basically "everyone should install filters that block unauthorized content and... uh... the content companies will remain aware that fair use sort of exists sometimes." That's somewhat meaningless. Google's reason for not joining, even though it has come up with its own filters, is that it doesn't see why it should agree to stand by any specific guidelines that go above and beyond what the law requires, as there could be conditions under which such guidelines hold back necessary innovation. The bigger point, though, is how truly meaningless these guidelines are. If those guidelines are truly effective in stopping some unauthorized content on these sites, that content (and many users) will simply migrate elsewhere. In other words, it won't stop that unauthorized use of content and it won't help any of the companies that have agreed to the principles. That means that the impact of such things is likely to be pretty much nil.

Filed Under: copyright, guidelines, user generated content
Companies: audible magic, cbs, disney, google, microsoft, myspace, nbc universal, news corp, viacom