It's On: Details Emerge Of Polish Government's Formal Request For Top EU Court To Throw Out Upload Filters

from the worth-a-try dept

Earlier this year, Techdirt wrote about an intriguing tweet from the account of the Chancellery of the Prime Minister of Poland, which announced: "Tomorrow #Poland brings action against copyright directive to CJEU". The hashtags for the tweet made clear what Poland was worried about: "#Article13 #Article17". However, at that time, no details were forthcoming about this potentially important legal move. It was disappointing that nothing more has been heard about this unexpected development since then -- until now. A notice on the Official Journal of the European Union includes the following: "Case C-401/19: Action brought on 24 May 2019 -- Republic of Poland v European Parliament and Council of the European Union". The corresponding entry indicates that the Polish government believes that the upload filters required by Article 13/17 represent an "infringement of the right to freedom of expression and information" guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union:

The Republic of Poland claims specifically that the imposition on online content-sharing service providers of the obligation to make best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information (point (b) of Article 17(4) of [EU Copyright] Directive 2019/790) and the imposition on online content-sharing service providers of the obligation to make best efforts to prevent the future uploads of protected works or other subject-matter for which the rightsholders have lodged a sufficiently substantiated notice (point (c), in fine, of Article 17(4) of Directive 2019/790) make it necessary for the service providers -- in order to avoid liability -- to carry out prior automatic verification (filtering) of content uploaded online by users, and therefore make it necessary to introduce preventive control mechanisms. Such mechanisms undermine the essence of the right to freedom of expression and information and do not comply with the requirement that limitations imposed on that right be proportional and necessary.

Nothing new there, of course -- it's what Techdirt and many others pointed out repeatedly before the Directive was passed. But what is significant is that this time it is the Polish government that is making this statement, and in a complaint to the EU's highest court, the Court of Justice of the European Union (CJEU). As a previous post explained, some are of the view that the key importance of Poland's legal action is that it requires the CJEU to consider the questions raised. That will necessarily include whether upload filters are "proportional and necessary" as a response to the uploading of unauthorized copies by members of the public.

As to the remedies, the Polish government ideally wants points (b) and (c) of the following section of Article 13/17 cancelled:

If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:

(a) made best efforts to obtain an authorisation, and

(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event

(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).

If, however, the CJEU decides it is not possible to excise just those parts, the Polish government has a fallback position: it asks for Article 13/17 to be annulled in its entirely. It's too early to say whether Poland's request stands any chance of being granted. But it would certainly be rather fun watching the copyright industry go into meltdown if it saw all its lobbying for upload filters undone at a stroke.

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Filed Under: article 13, article 17, blocking, censorship machines, cjeu, copyright, copyright directive, filtering, poland, upload filters

EU Looking To Regulate Everything Online, And To Make Sites Proactively Remove Material

from the if-you-thought-Copyright-Directive-was-bad,-just-wait-for-Digital-Services-Act dept

One of the reasons that Techdirt and many others fought so hard against the worst ideas of the EU Copyright Directive is that it was clearly the thin end of the wedge. If things like upload filters and the imposition of intermediary liability become widely implemented as the result of legal requirements in the field of copyright, it would only be a matter of time before they were extended to other domains. Netzpolitik has obtained a seven-page European Commission paper sketching ideas for a new EU Digital Services Act (pdf) that suggests doing exactly that. The Act's reach is extremely wide:

The scope would cover all digital services, and in particular online platforms. This means the clarification would address all services across the internet stack from mere conduits such as ISPs to cloud hosting services; while a special emphasis in the assessment would be dedicated to updated rules for online platforms such as social media, search engines, or collaborative economy services, as well as for online advertising services.

A core aim is to replace the e-Commerce Directive, passed in 2000. This is presented as "outdated", but the suggestions in the paper are clearly a continuation of attacks on the fundamental principles underlying the open Internet that began with the Copyright Directive.

One of the problems for the EU when pushing through the upload filters of Article 13/17 in the Copyright Directive is that Article 15 of the e-Commerce Directive explicitly states that there is "No general obligation to monitor". Constant surveillance is the only way that upload filters can work -- if you don't monitor all the time, you can't be sure you block everything that the law requires. Furthermore, Article 14 of the e-Commerce Directive emphasizes that "the service provider is not liable for the information stored at the request of a recipient of the service". That's subject to certain conditions, such as being required to remove material that infringes on copyright, but only after being informed of its presence on their servers. The new Digital Services Act wants to force Internet companies to move beyond reactive behavior:

a binding "Good Samaritan provision" would encourage and incentivise proactive measures, by clarifying the lack of liability as a result of Such measures

The paper goes on to repeat the EU's earlier attempts to pretend that upload filters are not a glaring example of general monitoring -- something that EU courts may well be asked to rule on. The leaked document says:

While the prohibition of general monitoring obligations should be maintained as another foundational cornerstone of Internet regulation, specific provisions governing algorithms for automated filtering technologies -- where these are used -- should be considered, to provide the necessary transparency and accountability of automated content moderation Systems.

That's a classic: affirming that general monitoring is prohibited, while bringing in rules for proactive automated filtering technologies -- aka general monitoring. It would tilt the playing field even more in favor of big, mostly US companies, and would guarantee that the EU never produces its own digital giants like Google or Facebook. The other main proposal of the paper is to bring in mandatory pan-European rules for tackling online hate speech and disinformation, drawing on ideas in national laws:

Uniform rules for the removal of illegal content such as illegal hate speech would be made binding across the EU, building on the Recommendation on illegal content and case-law, and include a robust set of fundamental rights safeguards. Such notice-and-action rules could be tailored to the types of services, e.g. whether the service is a social network, a mere conduit, or a collaborative economy service, and where necessary to the types of content in question, while maintaining the maximum simplicity of rules.

Simplicity? - hardly. This all sounds like a recipe for a completely unworkable set of complex requirements that once again will favor big companies with deep pockets and big legal departments. The authors of the leaked note have managed to come up with an option for making these plans even worse: creating a "central regulator" for the whole EU to enforce this locked down, permissioned Internet they want to create. Although this is only an internal paper, not a formal proposal from the EU, it shows the kind of really bad ideas that are already floating around the European Commission, and being seriously considered there. If you thought the EU Copyright Directive was bad, just wait until you see the new EU Digital Services Act.

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Filed Under: copyright directive, digital services act, e-commerce directive, eu, filters, general monitoring, intermediary liability, notice and action, open internet, takedowns

German Government's Bullying Of FOI Group Provides A Warning Of How EU's New Upload Filters Will Be Used For Censorship

from the making-life-for-whistleblowers-even-harder dept

One of the many concerns about the upload filters of the EU's Copyright Directive is that they could lead to censorship, even if that is not the intention. The problem is that once a filtering mechanism is in place to block unauthorized copies of materials, it is very hard to stop its scope being widened beyond copyright infringement. As it happens, the German government has just provided a good example of the kind of abuse that is likely to become a commonplace.

FragDenStaat -- literally "ask the State" -- is a German freedom of information (FOI) organization. It obtained and published a six-page report about the herbicide glyphosate. The document was written by the Federal Institute for Risk Assessment, a publicly-funded body that provides scientific advice to Germany's federal government on issues relating to things like food, product, and chemical safety, as well as consumer health protection. Even though the report was paid for by the German public, obtained legally -- and can still be requested by anyone -- FragDenStaat is not allowed to distribute it. The Regional Court in Cologne has ruled that would be an infringement of the German State's copyright, and ordered it to be taken down. FragDenStaat says it will appeal -- to the Court of Justice of the European Union, if necessary -- and comments:

The federal government abuses copyright law to prevent the publication of public interest documents. This is possible because German copyright law is hopelessly outdated. We believe that copyright law should ensure that tax-financed documents such as the Glyphosat report may be used freely. But in contrast, the German government wants to tighten copyright law further, which will further reduce the amount of information the public receives about important topics like this.

Leaving aside the issue that all such reports funded by the public should by freely available unless there are very good reasons to withhold them -- not the case here -- there is the particularly troubling aspect of this bullying of FragDenStaat by the German government. At the moment, there is little to stop copies of this document being requested, then uploaded and shared around the Internet. But once the EU Copyright Directive's upload filters have been installed, it will be easy for the German government to require sites to block these attempts. The fact that the authorities were willing to waste money taking FragDenStaat to court over a six-page document suggests they won't hesitate for a second to use upload filters to block sharing.

It won't just be governments. It is inevitable that leaked documents showing evidence of wrong-doing by companies will be blocked on all the major sites once upload filters are available. No court order is required, so it will become the first thing companies trying to hide their dirty washing will do. Upload filters will not only cause legitimate material produced by Internet users to be blocked by over-cautious online platforms, it will also make life even harder for whistleblowers to expose the truth about corporate crimes and misdeeds. How convenient.

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Filed Under: copyright directive, eu, europe, filtering, freedom of information, germany

EU's Never Ending Quest To Rip The Internet And Free Expression To Shreds Continues With The Terrorist Content Regulation

from the it's-not-good-folks dept

Many of us are still getting over the insanity of the EU's Copyright Directive decision, and already we need to worry about the next awful EU regulation on the horizon: the EU's Terrorist Content Regulation which is significantly worse than even Article 13/17 of the Copyright Directive, and will create a massive stifling effect on free speech on the internet.

Over at Stanford, Daphne Keller has put together a depressing, but thorough, look at how the Terrorist Content Regulation will allow the most censorial government officials to silence speech across the EU, and possibly around the world.

We've discussed some of the details in the past (and on a podcast), but one of the key parts of the law is that it will require any website to take down content deemed to be terrorist content within one hour, based on demands from "competent authorities" within countries (don't even bother trying to figure out who is a "competent authority," it'll drive you crazy.)

Another, perhaps equally (or more) concerning, is that the regulation seeks to promote platform terms of service over the rule of law. As I'm sure you know already, platform terms of service do not need to match up with local laws, and platforms can be much more free to block or ban any kind of content as a violation of a particular term. The EU's plan here elevates the power of the terms of service, by allowing "competent authorities" (those guys again!) to tell platforms that certain content is in violation of their terms, requiring companies to review the content and potentially remove it or face liability. And you know what that will lead to: widespread censorship.

Keller's piece focuses on this "TOS over rule of law" aspect of the Terrorist Content Regulation to highlight how it will effectively allow the most censorial in a position to spread their censorship across the EU. Effectively, because if platforms disagree with a "referral" concerning their Terms of Service, they face incredibly onerous conditions in response:

The Regulation provides two tools for national authorities. The first, and easiest for all concerned, is a Referral, which requires the platform to expeditiously review content under its Terms of Service. The second is a binding Order. Orders require the platform to take content down, based on authorities’ determination that it violates the law. Referrals are the easiest choice for law enforcement, because they involve little or no legal analysis and the paperwork is simpler. They’re easier for platforms as well – and complying helps maintain good relationships with authorities.

Beyond these basic and to some extent pre-existing incentives, the Regulation adds major new ones. A platform that rejects a Referral and receives an Order is effectively choosing to accept major and unpredictable new obligations. For smaller platforms that have not already invested in content filters, getting an Order (or in some drafts several Orders) triggers the obligation to build them. That’s costly for any company, and may be financially insupportable for small ones. Companies that receive Orders also assume a new and poorly-defined relationship with authorities. They must submit annual reports describing their filtering efforts, and make engineering or product design changes if authorities aren’t satisfied. Since no one knows for sure who these new de facto regulators will be or how well they will understand available technologies, it’s hard to predict what they’ll ask for.

The best way for platforms to avoid these costs and uncertainties is to accept all Referrals – even if that requires changing how they interpret their TOS, and taking down previously permitted expression. That means accommodating even the most aggressive Referrals from national authorities, letting their requests shape online information access throughout the EU and around the world.

Yes, the lowest common denominator from whatever "competent authority" wins. As Keller points out, this "Rule of TOS" rather than "Rule of Law" is going to lead to some bad outcomes, but they're often ones that regulators can then turnaround and blame on the platforms rather than their own bad regulation that forces the platforms' hand. It is going to be an utter mess.

Filed Under: copyright directive, eu, europe, terrorist content regulation

The EU's Catastrophic Copyright Directive Can Still Be Stopped, If Governments Of Sweden And Germany Do The Right Thing

from the last-chance-to-save-the-Internet-as-we-know-it dept

Last week, the EU's Copyright Directive was passed by the European Parliament. Its supporters have wasted no time in dropping the mask, and revealing their true intent: installing upload filters on the Internet. First, France's Minister of Culture announced a "mission to promote and supervise content recognition technologies". More recently, EU Commissioner Günther Oettinger has confirmed that upload filters will be unavoidable. It's cold comfort that those who said that Article 13 (now officially Article 17) would inevitably bring in upload filters have now been proved right.

However, it turns out that the situation is not completely hopeless. Even though the vote in the European Parliament was the main hurdle the new copyright law needed to clear, there is one more stamp of approval required before it goes into effect. The little-known EU Council of Ministers must also agree, and it seems that is not a foregone conclusion.

Everything hinges on Sweden. As an article on the Bahnhof site (original in Swedish) explains, Sweden has previously voted in favor of the EU Copyright Directive, but can still change its mind. One way of achieving that is through a special parliamentary committee that helps to formulate Sweden's EU policy. The Swedish government's Web page about the committee says:

According to the rules, the Government is not obliged to act in compliance with the Committee on EU Affairs' opinions. However, the Committee on the Constitution has stated that the Government should act in compliance with the Committee's advice and opinions. The Committee on the Constitution has also stressed that if the Government does not act in compliance with the mandate it has received from the Committee on EU Affairs, it must have very good reasons for its actions.

If the Government does not follow the mandate given to it by the Committee on EU Affairs, it risks criticism, and ultimately, a vote of no confidence in the Chamber of the Riksdag [Swedish parliament].

Bahnhof's blog post is encouraging Swedish citizens to contact MPs on the EU Affairs Committee to ask them to instruct the Swedish government to vote against the EU Copyright Directive when it is discussed on April 15 at a meeting of EU agricultural ministers -- no, really (pdf). Two leading MPs have already said that they will work towards that goal. Tomas Tobé, Second Vice Chairman of Sweden's EU Affairs Committee tweeted (in Swedish, translated here by Microsoft): "We will force the government to say no. They did not have the mandate to say yes." Another key MP, Ilona Waldau, said on the same Twitter thread: "The European Council has not had the opportunity to make a decision, I answer the question how we should be able to get the government to say no. We are working on bringing the issue to the board."

As that indicates, it's not clear yet whether Sweden's EU Council will instruct the Swedish government to vote against the EU Copyright Directive, so nothing is certain. Moreover, as Florian Mueller points out, for the Copyright Directive to be blocked, Germany would also need to vote against it:

Even with Sweden changing its vote from Yes to No, we're still far short of a blocking minority as I'll explain further below. But Germany could single-handedly block the deal (as could the UK, by the way, though there's little hope of that happening). A Swedish reversal would embolden and encourage those who'd like the German government to withdraw its support.

Mueller's blog post goes on to explain why there are good grounds for believing that Germany might do that. Julia Reda of the Pirate Party says that the German parliament will be debating the issue soon. All-in-all, this means that there is still hope that the EU Copyright Directive can be blocked, although it would require a number of pieces of the political puzzle to fall into place perfectly for that to happen.

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Filed Under: article 13, copyright, copyright directive, europe, germany, sweden

Here Comes The Splinternet: How The EU Is Helping Break Apart The Internet

from the this-is-not-great dept

In the wake of last week's unfortunate decision by the EU Parliament to vote for the terrible EU Copyright Directive, Casey Newton over at the Verge has a thoughtful piece about how this could lead to the internet splitting into three.

...this latest effort is hamfisted in the extreme, and may have the effect of splintering the internet beyond what seemed possible even a few years ago. In the wake of GDPR’s passage, Europeans couldn’t visit the websites of some US publishers for months as new privacy frameworks were put into place. That sort of thing may be about to become a lot more common. The time has now come to speak of the internets, plural. And to get around, you might just need a passport.

Basically, as Newton notes, it just might not be worth it for many sites to serve EU visitors:

Perhaps the big platforms will feel so motivated to preserve their European user bases that they will indeed negotiate the deals necessary to keep their existing services operating basically as is. But it’s just as easy to imagine them scaling back their services, as Google has already done, and further divide the internet into zones. If it goes far enough, the entire internet may begin to feel like Netflix, whose library of content varies dramatically depending on which country you log on from.

But that's just the big platforms. Smaller platforms aren't even going to be in a position or have the resources to negotiate those deals.

And, this is just one symptom of a broader trend. China practically has its own internet already. The EU's efforts here may create an EU-focused silo as well. India has been making noises about following China's lead, perhaps cleaving off its own internet in addition. And, of course, there's always Russia with its plan to unplug itself from the internet.

Perhaps this kind of splintering of the global internet was inevitable. Perhaps we, as a society, simply can't handle a global network for everyone. But, from my perspective, this is still incredibly disappointing. The grand experiment of a global open internet is on its way out. And it's especially depressing that the EU is the one who decided to lead the way on this.

Filed Under: article 13, copyright, copyright directive, eu, europe

Guy In Charge Of Pushing Draconian EU Copyright Directive, Evasive About His Own Use Of Copyright Protected Images

from the do-as-I-say,-not-as-I-do? dept

There's one person who wields more power than anyone to shape the awful EU Copyright Directive: the MEP Axel Voss. He's the head of the main Legal Affairs Committee (JURI) that is steering the Directive through the European Parliament. Voss took over from the previous MEP leading JURI, Therese Comodini Cachia, after she decided to return to her native Malta as member of the national parliament. Her draft version of the Directive was certainly not perfect, but it did possess the virtue of being broadly acceptable to all sides of the debate. When Voss took over last year, the text took a dramatic turn for the worse thanks to the infamous "snippet tax" (Article 11 of the proposed Directive) and the "upload filter" (Article 13).

As Mike reported a couple of weeks ago, Voss offered a pretty poor defense of his proposals, showing little understanding of the Internet. But he made clear that he thinks respecting copyright law is really important. For example, he said he was particularly concerned that material is being placed online, where "there is no remuneration of the concerned author." Given that background, it will probably come as no surprise to Techdirt readers to learn that questions are now being asked whether Voss himself has paid creators for material that he has used on his social media accounts:

BuzzFeed News Germany ... looked at the posts from the past 24 months on Voss's social media channels. In the two years, BuzzFeed News has found at least 17 copyrighted images from at least eight different image agencies, including the German press agency dpa.

As good journalists, BuzzFeed News Germany naturally contacted Axel Voss to ask whether he had paid to use all these copyrighted images:

Since last Thursday, 5 July, BuzzFeed News Germany has asked Voss's office and his personal assistant a total of five times in writing and several times over the phone whether Axel Voss or his social media team has paid for the use of these copyrighted photos. Voss's staff responded evasively five times. Asked if the office could provide us with licensing evidence, the Voss office responded: "We do not provide invoices to uninvolved third parties."

Such a simple question -- had Voss paid for the images he used? -- and yet one that seemed so hard for the Voss team to answer, even with the single word "yes". The article (original in German) took screenshots of the images the BuzzFeed Germany journalists had found. That's just as well, because shortly afterwards, 12 of the 17 posts with copyrighted images had been deleted. The journalists contacted Axel Voss once more, and asked why they had disappeared (original in German). To which Axel Voss's office replied: anyone can add and remove posts, if they wish. Which is true, but fails to answer the question, yet again. However, Axel Voss's office did offer an additional "explanation":

according to the current legal situation (...), if the right-holder informs us that we have violated their rights, we remove the image in question according to the notice and takedown procedure of the e-commerce directive.

That is, Axel Voss, or his office, seems to believe it's fine to post copyrighted material online provided you take it down if someone complains. But that's not how it works at all. The EU notice and takedown procedure applies to the Internet services hosting material, not to the individual users of those services. The fact that the team of the senior MEP responsible for pushing the deeply-flawed Copyright Directive through the European Parliament is ignorant of the current laws is bad enough. That he may have posted copyrighted material without paying for it while claiming to be worried that creators aren't being remunerated for their work, is beyond ridiculous.

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Filed Under: article 13, axel voss, copyright, copyright directive, eu, eu copyright directive, eu parliament, infringement, licensing

A Numerical Exploration Of How The EU's Article 13 Will Lead To Massive Censorship

from the it's-not-good-folks dept

One of the key talking points from those in favor of Article 13 in the EU Copyright Directive is that people who claim it will lead to widespread censorship are simply making it up. We've explained many times why this is untrue, and how any time you put in place a system for taking down content, tons of perfectly legitimate content gets caught up in it. Some of this is from malicious takedowns, but much of it is just because algorithms make mistakes. And when you make mistakes at scale, bad things happen. Most of you are familiar with the concept of "Type 1" and "Type 2" errors in statistics. These can be more simply described as false positives and false negatives. Over the weekend, Alec Muffett decided to put together a quick "false positive" emulator to show how much of an impact this would have at scale and tweeted out quite a thread, that has since been un-threaded into a webpage for easier reading. In short, at scale, the "false positive" problem is pretty intense. A ton of non-infringing content is likely to get swept up in the mess.

Using a baseline of 10 million piece of content and a much higher than reality level of accuracy (99.5%), and an assumption that 1 in 10,000 items are "bad" (i.e., "infringing") you end up with a ton of legitimate content taken down to stop just a bit of infringement:

So basically in an effort to stop 1,000 pieces of infringing content, you'd end up pulling down 50,000 pieces of legitimate content. And that's with an incredible (and unbelievable) 99.5% accuracy rate. Drop the accuracy rate to a still optimistic 90%, and the results are even more stark:

Now we're talking about pulling down one million legitimate, non-infringing pieces of content in pursuit of just 1,000 infringing ones (many of which the system still misses).

Of course, I can hear the howls from the usual crew, complaining that the 1 in 10,0000 number is unrealistic (it's not). Lots of folks in the legacy copyright industries want to pretend that the only reason people use big platforms like YouTube and Facebook is to upload infringing material, but that's laughably wrong. It's actually a very, very small percentage of such content. And, remember, of course, Article 13 will apply to basically any platform that hosts content, even ones that are rarely used for infringement.

But, just to humor those who think infringement is a lot more widespread than it really is, Muffett also ran the emulator with a scenario in which 1 out of every 500 pieces of content are infringing and (a still impossible) 98.5% accuracy. It's still a disaster:

In that totally unrealistic scenario with a lot more infringement than is actually happening and with accuracy rates way above reality, you still end up pulling down 150,000 non-infringing items... just to stop less than 20,000 infringing pieces of content.

Indeed, Muffett then figures out that with a 98.5% accuracy rate, if a platform has 1 in 67 items as infringing, at that point you'll "break even" in terms of the numbers of non-infringing content (147,000) that is caught by the filter, to catch an equivalent amount of infringing content. But that still means censoring nearly 150,000 pieces of non-infringing content.

This is one of the major problems that people don't seem to comprehend when they talk about filtering (or even human moderating) content at scale. Even at impossibly high accuracy rates, a "small" percentage of false positives leads to a massive amount of non-infringing content being taken offline.

Perhaps some people feel that this is acceptable "collateral damage" to deal with the relatively small amount of infringement on various platforms, but to deny that it will create widespread censorship of legitimate and non-infringing content is to deny reality.

Filed Under: algorithms, censorship, censorship machines, copyright, copyright directive, eu, eu copyright directive, false positives, filters, type 1 errors, type 2 errors

Don't Believe Those Who Wish To Diminish Digital Rights By Falsely Implying It's All Big Tech Lobbying

from the people-know-how-digital-rights-work dept

As we have been covering in the last couple of weeks, a controversial EU Copyright Directive has been under discussion at the European Parliament, and in a surprising turn of events, it voted to reject fast-tracking the tabled proposal by the JURI Committee which contained controversial proposals, particularly in Art 11 and Art 13. The proposed Directive will now get a full discussion and debate in plenary in September.

I say surprising because for those of us who have been witnesses (and participants) to the Copyright Wars for the last 20 years, such a defeat of copyright maximalist proposals is practically unprecedented, perhaps with the exception of SOPA/PIPA. For years we've had a familiar pattern in the passing of copyright legislation: a proposal has been made to enhance protection and/or restrict liberties, a small group of ageing millionaire musicians would be paraded supporting the changes in the interest of creators. Only copyright nerds and a few NGOs and digital rights advocates would complain, their opinions would be ignored and the legislation would pass unopposed. Rinse and repeat.

But something has changed, and a wide coalition has managed to defeat powerful media lobbies for the first time in Europe, at least for now. How was this possible?

The main change is that the media landscape is very different thanks to the Internet. In the past, the creative industries were monolithic in their support for stronger protection, and they included creators, corporations, collecting societies, publishers, and distributors; in other words the gatekeepers and the owners were roughly on the same side. But the Internet brought a number of new players, the tech industry and their online platforms and tools became the new gatekeepers. Moreover, as people do not buy physical copies of their media and the entire industry has moved towards streaming, online distributors have become more powerful. This has created a perceived imbalance, where the formerly dominating industries need to negotiate with the new gatekeepers for access to users. This is why creators complain about a value gap between what they perceive they should be getting, and what they actually receive from the giants.

The main result of this change from a political standpoint is that now we have two lobbying sides in the debate, which makes all the difference when it comes to this type of legislation. In the past, policymakers could ignore experts and digital rights advocates because they never had the potential to reach them, letters and articles by academics were not taken into account, or given lip service during some obscure committee discussion just to be hidden away. Tech giants such as Google have provided lobbying access in Brussels, which has at least leveled the playing field when it comes to presenting evidence to legislators.

As a veteran of the Copyright Wars, I have to admit that it has been very entertaining reading the reaction from the copyright industry lobby groups and their individual representatives, some almost going apoplectic with rage at Google’s intervention. These tend to be the same people who spent decades lobbying legislators to get their way unopposed, representing large corporate interests unashamedly and passing laws that would benefit only a few, usually to the detriment of users. It seems like lobbying must be decried when you lose.

But to see this as a victory for Google and other tech giants completely ignores the large coalition that shares the view that the proposed Articles 11 and 13 are very badly thought-out, and could represent a real danger to existing rights. Some of us have been fighting this fight when Google did not even exist, or it was but a small competitor of AltaVista, Lycos, Excite and Yahoo!

At the same time that more restrictive copyright legislation came into place, we also saw the rise of free and open source software, open access, Creative Commons and open data. All of these are legal hacks that allow sharing, remixing and openness. These were created precisely to respond to restrictive copyright practices. I also remember how they were opposed as existential threats by the same copyright industries, and treated with disdain and animosity. But something wonderful happened, eventually open source software started winning (we used to buy operating systems), and Creative Commons became an important part of the Internet’s ecosystem by propping-up valuable common spaces such as Wikipedia.

Similarly, the Internet has allowed a great diversity of actors to emerge. Independent creators, small and medium enterprises, online publishers and startups love the Internet because it gives them access to a wider audience, and often they can bypass established gatekeepers. Lost in this idiotic “Google v musicians” rhetoric has been the threat that both Art 11 and 13 represent to small entities. Art 11 proposes a new publishing right that has been proven to affect smaller players in Germany and Spain; while Art 13 would impose potentially crippling economic restrictions to smaller companies as they would have to put in place automated filtering systems AND redress mechanisms against mistakes. In fact, it has been often remarked that Art 13 would benefit existing dominant forces, as they already have filtering in place (think ContentID).

Similarly, Internet advocates and luminaries see the proposals as a threat to the Internet, the people who know the Web best think that this is a bad idea. If you can stomach it, read this thread featuring a copyright lobbyist attacking Neil Gaiman, who has been one of the Internet celebrities that have voiced their concerns about the Directive.

Even copyright experts who almost never intervene in digital rights affairs the have been vocal in their opposition to the changes.

And finally we have political representatives from various parties and backgrounds who have been vocally opposed to the changes. While the leader of the political opposition has been the amazing Julia Reda, she has managed to bring together a variety of voices from other parties and countries. The vitriol launched at her has been unrelenting, but futile. It has been quite a sight to see her opponents both try to dismiss her as just another clueless young Pirate commanded by Google, while at the same time they try to portray her as a powerful enemy in charge of the mindless and uninformed online troll masses ready to do her bidding.

All of the above managed to do something wonderful, which was to convey the threat in easy-to-understand terms so that users could contact their representatives and make their voice heard. The level of popular opposition to the Directive has been a great sight to behold.

Tech giants did not create this alliance, they just gave various voices access to the table. To dismiss this as Google’s doing completely ignores the very real and rich tapestry of those defending digital rights, and it is quite clearly patronizing and insulting, and precisely the reason why they lost. It was very late until they finally realized that they were losing the debate with the public, and not even the last-minute deployment of musical dinosaurs could save the day.

But the fight continues, keep contacting your MEPs and keep applying pressure.

Reposted from the TechnoLlama blog.

Filed Under: article 11, article 13, copyright, copyright directive, digital rights, eu, eu copyright directive, internet freedom

EU Parliament Votes To Step Back From The Abyss On Copyright For Now

from the even-against-sir-paul's-support dept

The last few days (and weeks) we've had plenty of articles about the EU's attempt to undermine the fundamental aspects of the internet with its Copyright Directive, including a snippet tax and the requirement of upload filters. Supporters of the Directive have resorted to ever-increasing levels of FUD in trying to get the EU Parliament to move the directive forward without changes -- and they did this despite quietly making the directive much, much worse and only revealing those changes at the last minute. It became quite obvious that the intent of this legislative effort was to fundamentally change the internet, to make it much more like TV -- with a set of gatekeepers only allowing carefully selected and licensed content online.

As the drumbeat got louder from (quite reasonably) concerned people around the world, supporters of the effort kept trying different strategies in support of this nonsense -- including a letter claiming to be written by Sir Paul McCartney.

I have some serious doubts as to whether or not McCartney actually understands these issues. The fact that the letter uses the RIAA's exact talking points -- including the made up phrase "value gap" (not to mention the American English spelling of "jeopardizes" over "jeopardises") -- certainly hints at someone else writing this up and asking McCartney to sign. It certainly reflects pretty poorly on someone as beloved as McCartney (who, in the past, has actually embraced the open internet to more directly connect with fans) that he would weigh in on the wrong side of such an issue.

Either way, the good news is that even with McCartney's silly letter, the EU Parliament voted against moving the current version forward by a narrow tally of 318 to 278.

As noted in that tweet, this means that these issues will be up for amendments and more specific votes in September -- meaning we've got at least a few more months of fighting to save the open internet ahead of us. And you can be sure that, despite the weak efforts by those in favor of these changes over the past few weeks, they'll bulk up their offense as well.

In particular, expect a lot more claims from the recording industry that this is all about "helping artists," which is the same nonsense they pushed around SOPA/PIPA back in the day. But anyone who's actually taken the time to understand Article 13 (and Article 11) will understand that this is the opposite of that. It is not designed to help artists. It will seriously harm many of the platforms that those artists rely on. Sites like Bandcamp and Etsy and Redbubble and Kickstarter would be at risk. This effort is little more than a misguided attempt to force Google to give record labels more money -- and the proposals' backers really don't seem to give a shit if the end result is that smaller internet players are removed from the playing field and Google is put in an even more dominant position. They're just so focused on the (misguided) idea that Google somehow owes them more money, they'll take down the rest of the internet in pursuit of that obsession.

Either way, today's vote is historic. It's extremely rare for a legislative effort that has left committee to get reopened by the wider EU Parliament. As the good folks at EDRi note, this only happened because so many of you spoke up, contacting Members of the EU Parliament and spreading the news about this online (using many of the platforms that this legislation would harm). But, there's still a lot to be done:

We'll continue to report on this and keep people aware, but sites like SaveYourInternet.eu and EDRi will have lots of news, as (I'm sure) will MEP Julia Reda, who has been leading the charge to help preserve the open internet in the EU.

Filed Under: article 11, article 13, censorship machines, copyright, copyright directive, eu, eu copyright directive, eu parliament, link tax, snippet tax, upload filters