EU Parliament Puts Out Utter Nonsense Defending Copyright Directive

from the oh-come-on dept

The Legislative Affairs Committee (JURI) in the EU Parliament, who are in charge of pushing through the EU Copyright Directive put out a "Q and A" page about the Copyright Directive in the lead up to the next round of trilogue negotiations between the Parliament, the EU Council and the EU Commission. As you may recall, when we left things, everything was at a standstill with no one willing to agree on anything. Some are suggesting even worse proposals than have been seen before. The record labels and movie studios are threatening to drop their support of the bill if the EU actually gives incredibly minor "safe harbors" for internet platforms. The whole thing is a mess, and the easiest thing to do would be to just drop Articles 11 and 13 and focus on cleaning up the rest of the Directive. But that's not what's happening.

Negotiations have continued in the background, and where things stand now, the EU is going to fundamentally change how the internet works and not in a good way. They have basically agreed that internet companies will be liable for what users post -- in direct contradiction of current EU law found in the E-Commerce Directive. This will mean filters will become effectively mandatory (in a bit of hilarious theater, the agreement says it does not require filters... but there is literally no way to comply with the law without filters). Very, very, very, very limited safe harbors are still being negotiated over, and are "at risk" of being dropped altogether. Ditto a provision that will make the rules not apply to smaller platforms. Also, still on the table is a "notice and staydown" proposal that says if something does get through, platforms can never let it through again (how this will handle situations where one copy is infringing and another is non-infringing is ignored entirely).

So, as the push moves into the final rounds, JURI has decided that if it can't win this argument on facts, it's just going to flat out lie to the public. Let's dive in:

The proposed "Directive on copyright in the Digital Single Market" seeks to ensure that artists (especially small ones, for example musicians), and news publishers and journalists benefit from the online world and the internet as they do from the offline world.

What? There are more "small" musicians and journalists (waves hands!) making money today thanks to the internet, and these plans will completely kill the internet for us. There are more people making music today than ever before. Nothing in this bill is designed to actually help musicians or journalists. It is designed to help lock down the internet for a few giant record labels and news publishers.

Currently, due to outdated copyright rules, online platforms and news aggregators are reaping all the rewards while artists, news publishers and journalists see their work circulate freely, at best receiving very little remuneration for it. This makes it very difficult for artists and media professionals to earn a decent living.

This is utter nonsense. The proposal (Article 11) for online journalists (really: publishers) has already been tried in Germany and in Spain, and it failed in both places (in fact, in Spain, a study showed that it did a lot of harm to smaller publications).

As for musicians, it's never been a better time to be a musician. There are all sorts of ways to monetize, including on services like Kickstarter and Patreon, or on Spotify or Apple Music. Building audiences online has helped numerous musicians build up strong followings, and even created new opportunities for touring. There is no evidence at all that "online platforms and news aggregators are reaping all the rewards." That is a complete and total myth. What JURI is really talking about are exactly two platforms: Google News and YouTube. Google News doesn't run any ads in most locations, so it's not "reaping all the benefits," it's sending lots of traffic to news sites. For free. YouTube, meanwhile, is paying out tons of money to artists who choose to put their music on the site, and has already instituted the most advanced filter of its kind to stop infringement (and it's terrible).

So, how exactly do these laws make anything better? Snippet taxes have already been shown not to work, and the one platform that musicians are upset about, already has the most sophisticated filter on the planet, and it still sucks and causes a ton of collateral damage.

Can anyone at JURI explain how any of this helps small musicians and artists in a manner that doesn't involve "and then we wave the magic wand and Google just forks over cash"?

It is important to point out that the draft directive does not create any new rights for artists and journalists. It merely ensures that their existing rights are better enforced.

This is so misleading that it's extremely close to being an outright lie. It does not create any new rights for "artists and journalists." But it absolutely does create massive new rights for "record labels and news publishers." Notice how that's different? This is a pretty amazing scam by JURI, though, to first argue this is about helping artists and journalists, then claiming it creates no new rights for them, while ignoring that it does create those new rights for the gatekeepers who have a long history of screwing over musicians and journalists.

Nor does the draft directive create new obligations for online platforms or news aggregators. It merely ensures that existing obligations are better respected.

This is an outright lie. It creates massive new obligations for online platforms -- including having to license works that their users upload (which has never been required before) or to install expensive, faulty, censorship filters. There is nothing in there about "better respecting obligations." It is creating huge new obligations. Obligations that will be impossible for nearly every internet platform to meet.

What is currently legal and permitted to share will remain legal and permitted to share.

This, too, is incredibly malicious and deceptive. Yes, what is currently legal for users to share will remain legal. But no online platform will allow for it, because of the massive legal liabilities created by this Directive.

Notice how this JURI defense of Articles 11 and 13 keep shifting who they're talking about. There are multiple parties at stake here: end users, content creators, the legacy middlemen (publishers, record labels, film studios, etc.), and internet platforms. The Q&A conveniently keeps switching between them to try to make points about one while pretending it's debunking claims about others. People are concerned about it creating new rights? Just say it doesn't for artists and journalists (ignoring that it is creating those rights for publishers and labels). People are concerned about being able to share memes? Just say those things are still legal (ignoring that platforms will be required to block them all or face crippling fines).

The draft directive intends to oblige giant internet platforms and news aggregators (like YouTube or GoogleNews) to pay content creators (artists/musicians/actors and journalists) what they truly owe them;

Hey JURI: Literally two sentences earlier you insisted there were no new obligations for online platforms or news aggregators. Then two sentences later you flat out say that the directive "intends to oblige giant internet platforms" to do something they haven't done before. YOUR OWN DEBUNKING DEBUNKS ITSELF.

Furthermore "pay content creators what they truly owe them"? According to whom? And, again, with Article 11 we already know that it created no new revenue in Spain and Germany, so why lie and pretend this will make any difference there?

No new rights or obligations are being created.

Guys. Literally in the previous sentence you admitted to new obligations on internet giants. Remember that? Who is writing this propaganda?

The draft directive does not target the ordinary user.

There's that switcheroo again. Of course it doesn't target the ordinary user. It just will have a massive impact on the internet they rely on for all kinds of community and conversation.

By contrast, the draft directive will impact large online platforms and news aggregators like Google's YouTube, Google News or Facebook, making it essential for them to correctly remunerate artists and journalists whose work they monetise

And it will do this by stopping "ordinary users" from sharing the kind of content they're used to sharing. This is such an obnoxiously disingenuous tap dance by JURI. EU Citizens should be up in arms about this.

Large online platforms and news aggregators will have more reason than currently is the case to strike fair remuneration (licensing) agreements with artists and media houses who would have identified themselves beforehand as the owners of a piece of work.

Why? There is nothing in the directive that says that. Most platforms will have less incentive to do anything in the EU at all.

A platform or news aggregator will be further incentivised to strike such agreements because, in the absence of them, it would be directly liable if it hosts a piece of work with an unpaid licence fee.

Right. That's why it will censor the fuck out of their platforms. Because you are putting new obligations on those platforms, something you keep denying (while admitting it in the next breath).

The expectation is that the draft directive will push the online platforms/news aggregators to finally roll out a policy to fairly remunerate all those from whose work they make their money.

Again, this has been tried with Article 11. And it didn't work. Why is there this expectation that something you tried twice already and failed with will magically work the third time?

Freedom on the internet, as in the real world, will continue to exist as long as the exercise of this freedom does not restrict the rights of others, or is illegal. This means that a user will be able to continue uploading content to internet platforms and that these platforms/news aggregators will be able to continue hosting such uploads, as long as the platforms respect the creators’ right to fair remuneration.

Except that "fair remuneration" is a concept that you are making up. There is already fair remuneration. That's why more people are making more money from music today than ever before. It's why my own damn company exists. "Fair" remuneration is what the market says is fair. What this is attempting to do is not "fair" at all.

Currently, the online platforms/news aggregators remunerate creators on a voluntary basis and only to a very limited degree.

WHAT?!? This is utter nonsense, and if folks running JURI believe this, they are far more disconnected from reality than before. It is not at all "voluntary." All of the big platforms pay as required by law already. They have negotiated contracts and they all work to block infringing content.

The draft directive will not be the source of censorship. By increasing legal liability, the draft directive will increase pressure on internet platforms/news aggregators to conclude fair remuneration deals with the creators of work through which the platforms make money. This is not censorship.

This, again, is nonsense. Yes, it is censorship. Anyone who claims that "increased pressure" on platforms by making them liable for content on those platforms doesn't lead to censorship knows literally nothing about how online intermediary liability works, and all of the censorship it has already created. Again, JURI doesn't know what it's talking about or is lying. This is bad.

The draft directive sets a goal to be achieved - An online platform/news aggregator must not earn money from material created by people without compensating them. Therefore, a platform/news aggregator is legally liable if there is content on its site for which it has not properly paid the creator. This means that those whose work is used illegally can sue the platform/news aggregator.

The draft directive however does not specify or list what tools, human resources or infrastructure may be needed to prevent unremunerated material appearing on the site. There is therefore no requirement for upload filters.

Once again, this is utter bullshit. You can't let anything infringing on your platform... but we don't say you need to use a filter. Um. How do you block infringing content if you don't have a filter? Who knows? It's "up to you."

However, if large platforms/news aggregators do not come up with any innovative solutions, they may end up opting for filters. Such filters are already used by the big companies!

Wait. Earlier in this Q&A you said that this was all about getting the large platforms to meet these new obligations. Now you... point to the fact that they already are as proof that... there's no new obligation? What? And... if I'm reading this correctly, you make it sound like this is actually targeting smaller platforms that don't have these filters. And, yet you expect them to come up with magical mystical "innovative solutions" if they don't want to filter.

Oh, and here's the real kicker:

The criticism that these sometimes filter out legitimate content may at times be valid. However, this criticism should be directed towards the platforms/news aggregators designing and implementing them, not to the legislator who is setting out a goal to be achieved

Got that? We're demanding that companies do the impossible, even though the most sophisticated attempt at this already shows that it's impossible, don't blame us, the regulators, for demanding the impossible. We're just "setting out a goal to be achieved." What kind of regulator thinks it's appropriate to require the impossible, and, when people point out it's impossible, to shrug your shoulders and blame those who can't achieve the impossible?

A meme falls under the generic rights of ‘citation/quotation’ and ‘parody’. The citation and parody rights are not covered by the draft directive. The draft directive deals with the liability of platforms for works protected by copyright.

This is more disingenuous nonsense. There is no way for a filter or any other magical solution to determine that something is a meme or parody. It will get blocked. There are no exceptions in the directive for "citation/quotation." Indeed, the latest draft still has the possibility of "notice and staydown," meaning that even if it was used for parody of "citation/quotation" platforms wouldn't be allowed to host it without facing massive liability (or licensing work that legally doesn't need to be licensed).

The draft directive has been the subject of intense campaigning. Indeed, some statistics inside the European Parliament show that MEPs have rarely or even never been subject to a similar degree of lobbying before (such as telephone calls, emails etc.). The companies to be most affected by the directive have multi-billion dollar yearly revenues (for example Google’s revenue for 2017 was $110 billion and Facebook’s was $40.7 billion).

Such wide-ranging campaigning generally does lead to impressive claims snowballing; there are claims that the draft directive risks “breaking the internet", or "killing the internet". Since the draft directive does not confer any new rights on creators, nor impose new obligations on internet platforms/news aggregators, such claims seem excessive.

This is also bullshit. We went through the stats ourselves last month, and it showed that over 80% of the lobbying on the Copyright Directive came from legacy copyright industries such as the big entertainment companies and publishers. To claim that the pushback on these plans is due to an aggressive lobbying campaign from Google and Facebook is pure propaganda with no basis in reality. The public is pissed because the public knows how they use the internet, and they know what this law will do to their ability to use it the way they want.

Although the draft directive is aimed at helping all creators have a stronger bargaining position on how their work is used by online platforms, the main beneficiaries will be the smaller players. Larger players often have law firms to safeguard their rights, whereas smaller ones currently have little means to support them.

The smaller players only exist because of the open internet. These bills will literally kill smaller internet platforms in Europe too, because it will be impossible to comply, and the fines will be unsustainable. Meanwhile, again, the internet has enabled so many creators to create and make money... and it did so by enabling all of these different platforms that are about to be body slammed by this ridiculous bill pushed for by cynical opportunists and internet-illiterate policy makers.

It has been claimed that the directive will have a profoundly negative impact on the livelihood of hundreds of thousands of people...

The contrary is more likely to be the case: the draft directive’s intention is to help provide numerous people with the livelihood they deserve for their work, and which they require to continue creating. The draft directive intends to ensure that more money goes to artists and journalists rather than Google’s shareholders, a transfer of resources that is always beneficial to jobs.

Again, this makes no sense and is literally contrary to what has happened when the Google tax was tried in Spain.

Is Article 11 going to create a tax - to be more precise a tax payable when a news article is shared?

No. The EP wants to ensure that some money goes from multi-billion dollar news aggregators to the journalist who has done all the hard work writing up an article. These articles, it should be stressed, often dig up the truth and contribute enormously to upholding a democratic system. This cannot be considered a tax.

Again, this did not ensure that money went from Google to journalists in Germany or Spain, and it says nothing about journalists. If the link tax is paid, then it goes to the publishers, not the journalists doing "all the hard work." In the meantime, some journalists (waves hand!) want sites like Google News and Facebook to promote our stuff. I don't need them to pay me. I want them to drive traffic. It's MY responsibility to figure out how to make money off of that traffic.

Besides if -- as in Spain -- this leads Google News to leave the EU, then how the hell does that "help" journalists?

This entire thing is utter nonsense. It's either outright lies or deceitful misrepresentations. This is a Trumpian level of propaganda and bullshit, being pushed by the EU Parliament on behalf of the legacy copyright industries. The people of the EU should not stand for this kind of thing from their elected officials. Remember, nearly all of the lobbying on this issue has come from one side -- and it's not the side that JURI claims is pushing the narrative. Don't let Hollywood get away with this nonsense.

Filed Under: article 11, article 13, censorship, copyright, eu copyright directive, eu parliament, filters, google tax, intermediary liability, juri, link tax

Top EU Court's Advocate General Says German Link Tax Should Not Be Applied -- But On A Technicality

from the nice,-but-it-won't-stop-article-11 dept

As numerous Techdirt posts have explained, there are two really problematic areas with the EU's proposed copyright directive. Article 13, which will require pretty much every major online site to filter uploaded content, and Article 11, the so-called "link tax", more formally known as an "ancillary copyright". It's yet another example of the copyright ratchet -- the fact that laws governing copyright only ever get stronger, in favor of the industry, never in the other direction, in favor of the public. We know for sure that Article 11 will be a disaster because it's already been tried twice -- in Germany and Spain -- and failed both times.

Despite that fact, the German and Spanish laws are still on the law books in their respective countries. VG Media, the German collective management organization handling copyright on behalf of press publishers and others lost no time in bringing a case against Google. It alleged that the US Internet company had used text excerpts, images and videos from press and media material produced by VG Media's members without paying a fee.

Alongside the issue of whether Google did indeed infringe on the new law, there is another consideration arising out of some fairly obscure EU legislation. If the new German ancillary copyright law is "a technical regulation specifically aimed at a particular information society service", then it would require prior notification to the European Commission in order to be applicable. The German court considering VG Media's case asked the Court of Justice of the European Union, (CJEU), the EU's top court, to decide whether or not the link tax law is indeed a "technical regulation" of that kind. As is usual for CJEU cases, one of the court's Advocates General has offered a preliminary opinion before the main ruling is handed down (pdf). It concludes:

the Court should rule that national provisions such as those at issue, which prohibit only commercial operators of search engines and commercial service providers which edit content, but not other users, including commercial users, from making press products or parts thereof (excluding individual words and very short text excerpts) available to the public constitute rules specifically aimed at information society services. Further, national provisions such as those at issue constitute a technical regulation, subject to the notification obligation under that Directive.

It follows therefore, that in the absence of notification of these national provisions to the [European] Commission, these new German copyright rules cannot be applied by the German courts.

Although that sounds great, there are two caveats. One is that the CJEU is not obliged to follow the Advocate General's reasoning, although it often does. This means that it is quite likely that the top EU court will rule that Germany's link tax cannot be applied, and thus that Google has not infringed on any snippets produced by VG Media's members. The more important caveat is that even if the CJEU does take that view, it won't affect Article 11, which is EU, not national, legislation, and not finalized yet. So we are still facing the dire prospect of an EU-wide ancillary copyright that not only won't work, but also is something that many publishers don't even want.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: ancillary copyright, article 11, cjeu, eu, eu court of justice, germany, link tax
Companies: google

Legacy Copyright Industries Lobbying Hard For EU Copyright Directive... While Pretending That Only Google Is Lobbying

from the because-of-course dept

Have you heard that all of the opposition to the EU Copyright Directive and its hugely problematic Articles 11 and 13 is really being driven by Google lobbying? Most of you probably realized this was nonsense, but it now turns out that not only was the lobbying almost entirely dominated by the legacy copyright players, but a key plank of their lobbying campaign was to falsely allege that all opposition was just Google.

If you've been paying attention at all to the crazy fights over the EU Copyright Directive, you may have heard some claims being passed around that it's somehow "Google" lobbying heavily against the bill. Indeed, all over Twitter, that's the talking point from tons of EU Copyright Directive supporters. After the EU Parliament put the brakes on the bill back in July, I even saw a former RIAA exec (who has since blocked me on Twitter, so I can't show it to you) tweet that this was a clear perversion of the "will of the people" by Google's corporate lobbying. Of course, it's hilarious for that to come from an ex-RIAA exec, who was heavily involved over the past 3 decades in pushing through all sorts of protectionist, anti-public, anti-musician legislation and trade agreements.

But... it's a talking point. And it's one that lots of people have jumped on. Digital Music News, who is always quick to restate the recording industry's talking points, claimed that Google spent more than $36 million lobbying over Article 13. Billboard Magazine published a similar claim. Various music industry groups, in what appeared to be closely coordinated messaging, all started blaming Google and "the tech giants" for any opposition to the EU Copyright Directive -- which, mind you, would change the fundamental ways in which the internet works. Yet, in their minds, all of the opposition came from the internet giants.

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.

MEP Axel Voss, who was the EU Parliament Member who lead the charge on the Copyright Directive, and who has long been seen as being in the pocket of the copyright interests, even put out a press release recently blaming the tech giants and their lobbying:

After the vote, rapporteur Axel Voss (EPP, DE) said, “I am very glad that despite the very strong lobbying campaign by the internet giants, there is now a majority in the full house backing the need to protect the principle of fair pay for European creatives.”

There's been a lot more like that. On Twitter, whenever I talk about Article 13, the same crew that has been falsely attacking my views for years immediately start attacking me, claiming that it's all Google lobbying against Article 13.

So... about that. The wonderful site Corporate Europe Observatory, has a very thorough and very in-depth write-up about just who is lobbying on the EU Copyright Directive. And, quite incredibly, it's almost entirely dominated by all of those legacy copyright industries:

Since November 2014 there were 765 declared encounters between lobbyists and the Commission with “copyright” as a subject 1 Over 93% of these were with corporate interests, but the list of main actors might be quite surprising: the lobbyists with the highest access were in fact not big tech, but the collecting societies, creative industries (including big film and music studios) and press publishers.

The most frequently listed names are: IFPI - Representing recording industry worldwide (37 meetings) whose members include Sony Music and Warner Music, followed by the Federation of European Publishers (27) which represents national associations of book publishers, and GESAC - the European lobby for collecting societies (25), whose members include big EU collecting societies such as PRS for Music, the US giant recording label Universal Music Group International (22), and the Society of Audiovisual Authors (22), which represents national collecting societies.

Of the top 20 lobbyists by meetings, only two represented tech interests – Google, ranking number seven, and one of the trade associations it belongs to, DIGITALEUROPE, ranking 18th – while one sole NGO, the independent consumer organisation BEUC, ranked 12th.

The real story is even worse than that. Because I have abundant free time, I went through the file that Corporate Europe Observatory linked to detailing these lobbying meetings, and I went through all 205 entities and added up how many lobbying meetings were held by legacy entertainment interests, tech interests or public interests. Here's the breakdown:

While Corporate Europe Observatory lists 765 meetings, their spreadsheet actually shows 784. Also, there were a few organizations/lobbyists/lawyers where it was not exactly clear who they were lobbying for or on what side of the debate. To be as fair as possible, I simply included all of the ones I was unsure of into the "lobbying for tech" list. So, uh, for all the talk that Google was the one lobbying here, over 80% of the lobbying efforts came from the legacy copyright industries. That's pretty stunning. Of course, it's also disappointing to see that only 6% of the lobbying came from civil society groups. As CEO notes:

The voices of civil society organisations, small platforms, libraries, academics, citizens and even the UN Special Rapporteur on Freedom of Opinion and Expression were the collateral damage of the dispute between competing big business lobbies. Lobbyists and groups with a vested interest dominated the debate, while citizens’ opinions and interests were crowded out of the discussion.

Very depressing. For what it's worth, I included the "small platform" lobbying efforts in the "tech" list above (again, to be as careful as possible), but many of them view this issue even more strongly than Google, and are more focused on the public interest arguments.

Anyway, that chart is just for lobbying the EU Commission. CEO looks at some other available data for lobbying the EU Parliament as well (tragically, not that much info is public), but based on what is public it comes to the same conclusion:

Overall, the limited information which is available about lobby meetings shows the intense level of lobbying taking place on the Copyright Directive, but it also interestingly exposes that the biggest lobbies were not in fact big tech companies and their associates, as many headlines claimed, but the publishers, creative industries and collecting societies.

Incredibly, the narrative that all the lobbying is coming from Google has caused EU regulators to flat out discount complaints from people warning about problems with the proposal, while treating petitions supporting the Directive very differently. For example, the CEO report notes that organizations supporting both sides of the Copyright Directive set up "email your MEP campaigns," but the reaction to them was... let's just say, uneven.

Email your MEP campaigns are a common tool used by civil society organisations who mobilise their communities and supporters to exercise their democratic rights to engage with their elected representatives. Identity verification standards vary according to the tool used, but in this case, it seems that the campaign did not require email verification. That means that technically speaking, people could lie and change their identity in those emails.

De Cock explained that when they started the campaign they did not expect that so many people would participate, and so they themselves were surprised by the strength and impact of the campaign. But even then, can it really be labelled a denial of service attack? Such attacks are generally quite hostile, and aim to shut a website down completely. This is a remarkably different objective from that of an Email Your MEP campaign, which aims to ensure that MEPs are aware that there is popular support for certain causes and issues.

Astoundingly, ALDE MEP Jean Marie Cavada even said in an interview:

“After having analyzed the platform from which all emails come, I realized that it does not require a valid email address from the “users” to send emails. Thus, as sometimes we receive dozens of emails per minute, we can conceive that it is actually robots that send all these emails, which luckily makes this movement lose credibility.”

Many MEPs simply wrote back to the senders to confirm their identity. De Cock, for instance, was then forwarded several of these exchanges between MEPs and their constituents. It seems Mr Cavada did not write back to the people who had contacted him.

It is worth noting that PRS for Music also created a tool to email MEPs in advance of the vote, with the call to action: “PRS Member – Take 90 seconds to influence the vote”. This tool did not even include a return address, and yet there were no claims that these emails were sent by bots. It is interesting that C4C seem to have been criticised simply because of the volume of emails, which arguably simply indicates the level of concern from constituents on the issue. However, both the C4C and PRS can be criticised for the loose use of internet tools to email MEPs.

In other words, because so many more people used the tools to say that they were against Articles 11 and 13, at least some MEPs derided them as fake, while saying nothing about the many fewer people emailing in favor of those articles. Hmm.

Oh, and what about that claim of $36 million spent lobbying by Google all against Article 13. Turns out that that number is also bullshit (and Billboard should really issue a retraction).

That same week, immediately before the JURI committee vote, the UK Music Industry body published a press release stating that “figures show Google’s €31m EU lobbying bid” on copyright. UK Music simply took the entire lobby budget declared by Google in 2017, €6 million, and added to that the budgets of all the organisations and think tanks it is a member of, declaring that the “The combined value of Google’s indirect lobbying of the EU amounts to €25.5m”.

This is a highly problematic and flawed interpretation of the Transparency Register. Google’s entire self-declared lobby budget does make it one of the EU’s highest spending lobby groups. However, only a portion of the declared €6 million would likely be spent on copyright, especially as Google is also fighting several other significant lobby battles in the EU (for example on the anti-trust law cases being brought against Android, digital tax, terrorist content, fake news etc). According to available meeting data, it looks like most of Google's lobby meetings were in fact on issues from the Copyright Directive, so it appears that this is not their priority at the moment.

The €31 million figure also assumes that all the associations and think tanks of which Google is a member focused their entire declared EU lobby spending on copyright in 2017. That would include, for example, BusinessEurope, the EU employers’ lobby, which are not necessarily active on the Copyright Directive, and if they are would only spend a marginal part of their budget on this issue. In most cases these groups (such as Friends of Europe, Konrad Adenauer-Stiftung, Bruegel etc) did little or nothing at all on the Copyright Directive, so these amounts should clearly not be included in the calculations.

Incredibly, CEO reports that much of the lobbying effort... was focused on blaming Google for too much lobbying. No, really.

In the copyright discussion, claims that GAFA, and particularly Google, were behind all opposition to Article 11 and 13 were again a strong message from publishers, and harder to counter. For instance, in the lobby newspaper produced by the news agencies, both the text from AFP’s editor Katz, and the ‘editorial’, mention what they call deceptive lobbying. Katz wrote that the “reform has been fiercely opposed by Facebook and Google, who have campaigned on a complete fabrication: a supposed threat to people’s free access to the internet”. He even declared that “I am convinced that the members of parliament who have been misled by deceptive lobbying now understand that non-paying access to the internet is not at risk.”

So, let's be clear: there are lots of corporate interests at play here, and tragically, the voice of the public is getting drowned out. But if anyone claims that any of this process has been driven by the big tech firms, they are flat out lying. Don't let them get away with it.

Filed Under: article 11, article 13, copyright, eu, eu copyright directive, lobbying, narratives
Companies: google

Latest On EU Copyright Directive: No One's Happy With Article 13, So Maybe Let's Drop It?

from the don't-wreck-the-net dept

Over the last few weeks, the so-called trilogue negotiations between the EU Council, the EU Commission and the EU Parliament on the EU Copyright Directive have continued, and it appears to have created quite a mess. As you'll recall, because the Council, the Commission, and the Parliament all passed somewhat different versions of the Directive, they now have to go through this process to come up with a version that they all agree on -- and based on some of the proposals and discussions that have come out, it's been a total mess. And specifically on Article 13 -- the provision that will mandate upload filters -- the current situation is an total mess.

Seriously, it's so bad that basically no one wants it any more. And, yes, that includes some of the copyright extremists from the legacy copyright industries. Over the weekend, a group of entertainment organizations -- including the MPAA's international branch, the MPA, the Independent Film & Television Alliance (IFTA) and the notoriously aggressive copyright litigant, the Premier League, all got together to send a letter complaining about Article 13 and the direction it's gone in. Hilariously, they're not complaining that it's over-aggressive -- rather they're whining that Article 13 might actually have been made fairer as the negotiations have gone on. Specifically, they're upset that there are now safe harbors proposed for platforms to help them avoid liability. These entertainment groups apparently think safe harbors are some sort of damn loophole:

Recall that the initial goal of Article 13 was to codify the existing case-law in a way that would enable right holders to better control the exploitation of their content vis a vis certain OCSSPs which currently wrongfully claim they benefit from the liability privilege of Article 14 E-Commerce Directive.

However, unfortunately, the Value Gap provision has mutated in such a way that it now strengthens even further the role of OCSSPs to the direct detriment of right holders and completely undermines the status quo in terms of the EU liability regime. Some of the options proposed for discussion at trilogue level indeed wrongfully undermine current law and weaken right holders’ exclusive rights by, among others: creating a new liability privilege for certain platforms that have taken specific steps to avoid the availability of infringing copyright content on their services (but have failed to do so effectively), and conditioning protection of copyright online on right holders bearing the full burden of identifying and notifying copyright infringing content to platforms. These would constitute gifts to already powerful platforms, and would de facto constitute the only real change to the current status quo in legal terms, thus improving the position of platforms, but not of right holders.

Much of this complaint is complete bullshit. Article 13 has never been about "codifying existing case-law." It has always been about upending case law in Europe (and elsewhere) to completely gut intermediary liability protections, end user-generated content platforms, and turn the internet into a TV-like broadcast system, where the legacy company have "control" again (i.e., they get to extract monopoly rents as gatekeepers). The fact that the trilogue negotiations have introduced safe harbors should be seen as a good thing, but obviously not to the signatories of this letter.

Incredibly, the signers of the letter actually ask the negotiators to drop Article 13, or, at the very least limit it to merely applying to musical works. That would still be a problem, but would certainly stop most of the collateral damage that Article 13 would cause in its present state.

Meanwhile, many other companies are recognizing just how damaging Article 13 would be. Reddit has started alerting all of its EU users (and pointing them to our very own DontWreckThe.Net website), pointing out how disastrous the EU Copyright Directive would be for everyone who uses Reddit:

The problem with the Directive lies in Articles 11 (link licensing fees) and 13 (copyright filter requirements), which set sweeping, vague requirements that create enormous liability for platforms like ours. These requirements eliminate the previous safe harbors that allowed us the leeway to give users the benefit of the doubt when they shared content. But under the new Directive, activity that is core to Reddit, like sharing links to news articles, or the use of existing content for creative new purposes (r/photoshopbattles, anyone?) would suddenly become questionable under the law, and it is not clear right now that there are feasible mitigating actions that we could take while preserving core site functionality. Even worse, smaller but similar attempts in various countries in Europe in the past have shown that such efforts have actually harmed publishers and creators...

Accordingly, we hope that today's action will drive the point home that there are grave problems with Articles 11 and 13, and that the current trilogue negotiations will choose to remove both entirely. Barring that, however, we have a number of suggestions for ways to improve both proposals. Engine and the Copia Institute have compiled them here at https://dontwreckthe.net/. We hope you will read them and consider calling your Member of European Parliament (look yours up here). We also hope that EU lawmakers will listen to those who use and understand the internet the most, and reconsider these problematic articles. Protecting rights holders need not come at the cost of silencing European internet users.

Also, the massive video streaming site Twitch has now started alerting users to the harms of Article 13 as well:

Article 13 changes the dynamic of how services like Twitch have to operate, to the detriment of creators.

Because Article 13 makes Twitch liable for any potential copyright infringement activity with uploaded works, Twitch could be forced to impose filters and monitoring measures on all works uploaded by residents of the EU. This means you would need to provide copyright ownership information, clearances, or take other steps to prove that you comply with thorny and complicated copyright laws. Creators would very likely have to contend with the false positives associated with such measures, and it would also limit what content we can make available to viewers in the EU.

Operating under these constraints means that a variety of content would be much more difficult to publish, including commentary, criticism, fan works, and parodies. Communities and viewers everywhere would also suffer, with fewer viewer options for entertainment, critique, and more.

So, at this point, we have the internet platforms calling out how the Copyright Directive will harm all sorts of creators by making the platforms they use impossible. We have the film and sports industries complaining that there might actually be some safe harbors included in Article 13, which would apparently ruin the whole point for them (!?!?!?!?!?). The only one who still thinks Article 13 is a good thing apparently is the legacy recording industry who has been fairly open in that the entire point of Article 13 is to force YouTube to pay them more (even though it wouldn't actually do that).

So, hey, maybe it's time to scrap Articles 11 and 13 and not try to rush through copyright proposals that will have a massive impact on how the internet works, done by bureaucrats who clearly don't understand the impacts of what they're proposing, while in backroom negotiations?

Filed Under: article 11, article 13, censorship, copyright, eu, eu copyright directive, filters, intermediary liability, link tax, safe harbors, trilogue negotiations, upload filters
Companies: ifta, mpa, premier league, reddit, twitch

Dear EU Politicians: You Really Don't Have To Wreck The Internet

from the don't-wreck-the-internet dept

Visit DontWreckThe.Net to learn about the EU Copyright Directive »

As you'll recall, back in September, the EU Parliament voted to approve a draft of the EU Copyright Directive, despite it including a bunch of very problematic pieces -- mainly Article 13's mandatory filters and Article 11's snippet tax. What the EU Parliament approved was not the same as what the EU Council of member states had approved, nor what the EU Commission had approved, so now those three bodies have been working on a "trilogue" process to sync up the various versions and come up with a master version that will have to be approved again by all three institutions. There has been a lot of activity in the past few weeks -- and Italy's change of government has made things a bit interesting.

As the Trilogue discussions have continued, we've teamed up with a bunch of platforms and startup organizations both in the EU and the US to make some suggestions. It would probably be best for the internet to drop both Article 11 and Article 13 altogether, but barring that, we have a pretty detailed list of suggestions over at DontWreckThe.Net. As you hopefully see, just by looking at the long list of fixes we're requesting, there are still huge problems with the proposals. Furthermore, given that many of the platforms we've partnered with in developing this list are the ones who will be hardest hit, we're hopeful that the various officials debating this will take notice. Even more important: this is not just about those platforms, but everyone who uses them. If you use Reddit or Patreon or Vimeo, these rules are going to have a massive impact on how you'll be able to interact with the internet going forward. Also, we're asking other organizations to join this project, so if you run an organization that is worried about the impact of Articles 11 or 13, please reach out to us through the site.

And please, EU officials, don't wreck the net.

Filed Under: article 11, article 13, eu, eu copyright directive, intermediary liability, link tax, upload filters

Small And Medium Publishers Protest EU Link Tax, Which Will Harm Them, While Helping Only Large Publishers

from the shameful dept

As the EU continues to march towards wrecking the internet with a variety of dangerous proposals in the EU Copyright Directive, many are desperately trying to explain to policymakers there just how much damage they are going to do and asking them to take simple steps to prevent the worst possible outcomes. While most of the attention has been on the awful Article 13 upload filters, the Article 11 link/snippet tax is almost as bad.

Of course, to hear EU supporters of Article 11 explain things, such a brand new "publisher's right" is necessary to help save media organizations who have been undermined by the basic business model of the internet. This is already insanity (and, as we've pointed out, when both Germany and Spain passed similar laws, it harmed media sites, and did nothing to increase their revenue), but if that were the case, you'd expect most media organizations to be totally on board with the plan. That is not the case. A few of the very largest media sites are totally on board (with German publisher Axel Springer being the leading voice in support). But midsize and small publications recognize just how damaging this will be and they've now sent a letter to policymakers, who are working to finalize the Directive, calling out how the existing language puts them (the very entities policymakers claim this law will support) at great risk:

... we’ve noted with deep regret that both the European Council and the European Parliament are advocating for the creation of a new publishers’ right (Article 11 of the proposed Copyright Directive) instead of other alternatives, such as the presumption of rights, put forth by a wide range of stakeholders.

If the European institutions go ahead with the creation of such a right, we believe that it should incorporate key provisions that at least reduce some of the collateral damage to small and medium-sized publishers we expect, including with a view to transposition into national law.

Of particular concern is the idea that Article 11 might require licenses in order to index news content. That means even if a smaller site does not wish to be compensated by a news aggregator -- it has to set up a licensing scheme that requires payment. In effect, this outlaws Creative Commons and numerous business models and distribution strategies for the internet.

We would like to highlight a highly problematic provision adopted by the European Parliament: Article 11 (1) and Recital 32 introduce a remuneration principle which prohibits publishers from allowing indexing of their content online without remuneration. Recital 32 means that news aggregators, podcast aggregators and search engines would not be allowed to serve links with individual words and short extracts of news publisher content without a bespoke agreement stipulating payment – even when a news publisher wishes to be included.

We adamantly believe that any publisher’s right must give publishers the choice to consent to the sharing of their content online. Aggregators, search engines and other online services drive valuable traffic to publishers’ websites, particularly smaller or local ones; and this traffic referral creates huge opportunities to generate revenue through advertising.

Limiting publishers’ freedom in this way will result in detrimental consequences for us, as shown by a similar experience in Spain. The introduction of an unwaivable ancillary copyright in favor of publishers in Spain caused small publishers to lose as much as 15% of their web traffic. This is estimated to have cost the Spanish news publishing industry €10 million a year.

The key issue here is that if news aggregators -- who send sites plenty of traffic -- are required to set up licensing schemes and pay everyone they link to, it is most likely that they will only wish to negotiate with a few larger players, and simply avoid linking to smaller sites, if they continue linking at all. This will disproportionately benefit those large sites. And this would be true even if (as many predict) brand new collection society middlemen show up to collect and distribute such money.

We've already seen this in action. In the US, it's been widely reported how collection society ASCAP simply finds it impossible to track the number of plays of smaller, independent artists, and thus distributes their share to the most popular artists. It is literally taking from the smallest, independent artists, and giving their royalties to the wealthier and more successful ones. The same is likely true of any scheme for reimbursing news sites as well.

Hell, we're a news site here that is always open to new revenue streams, but I find it offensive that the government should step in to try to force other sites to pay us, and expect that even if it did apply to us, it would be such a huge bureaucratic clusterfuck that it wouldn't even be worth the effort to make sure we got paid.

So, really, the various policymakers in the EU should be required to answer a fairly simple question: if so many media sites are directly against this policy, and policymakers are claiming its necessary to help those very sites... then who are they really doing this for in the first place?

Filed Under: article 11, copyright, eu, eu copyright directive, europe, link tax, neighboring rights, publishers

EU Copyright Directive Update: Fresh (But Slim) Hope Of Stopping Link Taxes And Upload Filters

from the and-ways-to-make-them-less-awful-if-we-can't dept

The awful EU Copyright Directive is not done and dusted. As Techdirt reported last month, the European Parliament may have failed to do its duty and protect the EU Internet for the region's citizens, but the proposed law has not yet passed. Instead, it has entered the so-called "trilogue" discussions. Pirate Party MEP Julia Reda explains:

In this series of closed-door meetings, the European Parliament and the Council (representing the member state governments) hammer out a final text acceptable to both institutions. It's the last chance to make changes before the Directive gets adopted. Meetings are currently scheduled until Christmas, although whether the process will be concluded by then is up in the air.

A recent decision by the General Court of the European Union has ruled that the European Parliament can no longer deny the public access to trilogue documents (pdf). As a result, Reda has promised to provide updates on what is happening in those hitherto secretive meetings. She just published her report on the second trilogue negotiation, and there's good and bad news. The good news is that a change of government in Italy has led to that country shifting its stance: it is now against the worst parts of the EU Copyright Directive. An EFF post explains the implications of that important development:

There may now be sufficiently large opposition to the articles [11 and 13] to create a blocking minority if they all vote together, but the new bloc has not settled on a united answer. Other countries are suspicious of Italy's no-compromise approach. They want to add extra safeguards to the two articles, not kill them entirely. That includes some of the countries that were originally opposed in May, including Germany.

In other words, there is now at least a slim chance that Article 11 and Article 13 could be dropped entirely, or at least improved in terms of the safeguards they contain. Against that, there is some unexpected bad news, explained here by Reda:

Council, on the other hand, has now completely out of the blue proposed a new Article 17a that says that existing exceptions for education, text and data mining or preservation can only be maintained if they don't contradict the rules of the newly introduced mandatory exceptions. In the case of teaching, this would mean that national teaching exceptions that don't require limiting access to the educational material by using a "secure electronic environment" would no longer apply!

This is outrageous given that the whole stated purpose of the new mandatory exceptions was to make research and education easier, not to erect new barriers. If as a consequence of the new mandatory teaching exception, teaching activities in some countries that have been legal all along would no longer be legal, then the reform would have spectacularly failed at even its most modest goal of facilitating research and education.

Since this is a completely new proposal, it's not clear how the European Parliament will respond. As Reda writes, the European Parliament ought to insist that any copyright exception that is legal under existing EU copyright law remains legal under the new Directive, once passed. Otherwise the exercise of "making copyright fit for the digital age" -- the supposed justification for the new law -- will have been even more of a fiasco than it currently it is.

There are two other pieces of good news. Yet another proposed extension of EU copyright, this time to create a special new form of copyright for sporting events, seems to have zero support among the EU's Member States, and thus is likely to be dropped. Reda also notes that Belgium, Finland, Germany, the Netherlands, Italy, Estonia and the Czech Republic are in favor of expanding the scope of the proposed copyright exception for text and data mining to include businesses. That's something that the AI industry in Europe desperately needs if it is to keep up with the US and China in using massive text and data stores to train AI systems.

The important message to take away here is that the EU Copyright Directive is certainly a potential disaster for the Internet in Europe, but it's not over yet. It's still worth trying to make the politicians understand how harmful it would be in its present form, and to improve the law before it's too late. That's precisely what the EFF is attempting to do with a note that it has sent to every member of the EU bodies negotiating the final text in the trilogue meetings. It has two suggestions, both addressing serious flaws in the current versions. One concerns the fact that there are zero penalties for making false copyright claims that could result in material being filtered by Article 13:

Based on EFF's decades-long experience with notice-and-takedown regimes in the United States, and private copyright filters such as YouTube's ContentID, we know that the low evidentiary standards required for copyright complaints, coupled with the lack of consequences for false copyright claims, are a form of moral hazard that results in illegitimate acts of censorship from both knowing and inadvertent false copyright claims.

The EFF goes on to make several sensible proposals for ways to minimize this problem. The other suggestion concerns Article 11, the so-called "link tax". Here the issue is that the proposed measure is very poorly worded:

The existing Article 11 language does not define when quotation amounts to a use that must be licensed, though proponents have argued that quoting more than a single word requires a license.

Again, the EFF offers concrete suggestions for at least making the law less ambiguous and slightly less harmful. However, as the EFF rightly notes, tinkering with the text of these section is not the right solution:

In closing, we would like to reiterate that the flaws enumerated above are merely those elements of Articles 11 and 13 that are incoherent or not fit for purpose. At root, however, Articles 11 and 13 are bad ideas that have no place in the Directive. Instead of effecting some piecemeal fixes to the most glaring problems in these Articles, the Trilogue take a simpler approach, and cut them from the Directive altogether.

Although that seems a long shot, there is still hope, not least because Italy's reversal of position on parts of the proposed directive makes the arithmetic of the voting considerably less certain than it seemed before. In particular, it's still worth contacting the ministries responsible in EU Member States for copyright matters to explain why Articles 11 and 13 need to go if the Internet in the EU is to thrive.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: article 11, article 13, copyright, education, eu, eu copyright directive, italy, link tax, trilogue, upload filters, user rights

EU Gives Up On The Open Web Experiment, Decides It Will Be The Licensed Web Going Forward

from the this-is-bad dept

Well, this was not entirely unexpected at this point, but in the EU Parliament earlier today, they voted to end the open web and move to a future of a licensed-only web. It is not final yet, as the adopted version by the EU Parliament is different than the (even worse) version that was agreed to by the EU Council. The two will now need to iron out the differences and then there will be a final vote on whatever awful consolidated version they eventually come up with. There will be plenty to say on this in the coming weeks, months and years, but let's just summarize what has happened.

For nearly two decades, the legacy entertainment industries have always hated the nature of the open web. Their entire business models were based on being gatekeepers, and a "broadcast" world in which everything was licensed and curated was perfect for that. It allowed the gatekeepers to have ultimate control -- and with it the power to extract massive rents from actual creators (including taking control over their copyright). The open web changed much of that. By allowing anyone to publicize, distribute and sell works by themselves, directly to end users, the middlemen were no longer important.

The fundamental nature of the internet was that it was a communications medium rather than a broadcast medium, and as such it allowed for permissionless distribution of content and communication. This has always infuriated the legacy gatekeepers as it completely undermined the control and leverage they had over the market. If you look back at nearly every legal move by these gatekeepers over the last twenty five years concerning the internet, it has always been about trying to move the internet away from an open, permissionless system back towards one that was a closed, licensed, broadcast, curated one. There's historical precedence for this as well. It's the same thing that happened to radio a century ago.

For the most part, the old gatekeepers have not been able to succeed, but that changed today. The proposal adopted by the EU Parliament makes a major move towards ending the open web in the EU and moving to a licensed, curated one, which will limit innovation, harm creators, and only serve to empower the largest internet platforms and some legacy gatekeepers. As Julia Reda notes:

Today’s decision is a severe blow to the free and open internet. By endorsing new legal and technical limits on what we can post and share online, the European Parliament is putting corporate profits over freedom of speech and abandoning long-standing principles that made the internet what it is today.

The Parliament’s version of Article 13 (366 for, 297 against) seeks to make all but the smallest internet platforms liable for any copyright infringements committed by their users. This law leaves sites and apps no choice but to install error-prone upload filters. Anything we want to publish will need to first be approved by these filters, and perfectly legal content like parodies and memes will be caught in the crosshairs.

The adopted version of Article 11 (393 for, 279 against) allows only “individual words” of news articles to be reproduced for free, including in hyperlinks – closely following an existing German law. Five years after the ‘link tax’ came into force in Germany, no journalist or publisher has made an extra penny, startups in the news sector have had to shut down and courts have yet to clear up the legal uncertainty on exactly where to draw the line. The same quagmire will now repeat at the EU level – no argument has been made why it wouldn’t, apart from wishful thinking.

This is a dark day for the open internet in the EU... and around the world. Expect the same gatekeepers to use this move by the EU to put pressure on the US and lots of other countries around the world to "harmonize" and adopt similar standards in trade agreements.

I know that many authors, musicians, journalists and other content creators cheered this on, incorrectly thinking that was a blow to Google and would magically benefit them. But they should recognize just what they've supported. It is not a bill designed to help creators. It is a bill designed to prevent innovation, lock up paths for content creators to have alternatives, and force them back into the greedy, open arms of giant gatekeepers.

Filed Under: article 11, article 13, broadcast, copyright, eu copyright directive, gatekeepers, internet, license, link tax, open web, permission, upload filters

The Intellectual Dishonesty Of Those Supporting The Existing Text Of The EU Copyright Directive

from the ignorance-or-purposeful-misdirection dept

As the EU gets ready to vote (again) on various amendments for the EU Copyright Directive, there has been an incredibly dishonest push by supporters of the original directive (often incorrectly claiming they're thinking of creators' best interests), to argue that the warnings of those who think these proposals are dangerous are misleading. What they are doing is unfortunate, but it deserves to be called out -- because of just how dishonest it is. They usually involve misrepresenting the law and its impact in order to completely misrepresent what will happen.

There are numerous examples of this in practice, but I'll use this article in the German site FAZ as just one example of the kind of rhetoric being used, as it is an impressively intellectually bankrupt version of the argument I'm seeing quite a bit lately. It was written by a guy named Volker Rieck who has shown up in a bunch of places attacking critics of the EU Copyright Directive. He apparently runs some sort of anti-piracy organization, which perhaps shouldn't be surprising. But, that doesn't excuse the sheer dishonesty of his arguments.

Very early in the process, the only MEP from the Pirate Party, Julia Reda, began to fight the propositions. For her campaign, she made very strong use of distortion and simplification. The word "link tax"..., by way of which Reda wanted to stop Article 11 of the policy, may be catchy, but there is something unwittingly comical to the earnest suggestion that there is a tax, collected by the tax office, on using links to online pieces of writing.

This is... odd. The word "tax" is used in a variety of contexts to show excess costs of certain proposals. Nothing about it deliberately suggests a "tax office" will be involved. But the "link tax" is quite real. The whole point of Article 11 is to create a new form of license -- required for certain sites to have to pay for nearly every use of media content. Let's be clear, because it often gets lost in the discussion: all of this content is already covered by copyright. At issue is whether or not one can link to it and include a short summary of the contents without first having to pay a license above and beyond what they would have to pay to license the content itself. And this is not an ambiguous issue. In the latest draft of the proposal from MEP Axel Voss it's pretty explicit that the link tax is about "obtaining fair and proportionate remuneration for such uses." The following is directly from the text of Voss's proposed amendment (which is more or less the "default" plan for the Copyright Directive as he's the main MEP behind the Directive):

Online content sharing service providers perform an act of communication to the public and therefore are responsible for their content and should therefore conclude fair and appropriate licensing agreements with rightholders.

It is absolutely a tax to require a license for such uses. And while Voss has included this escape clause saying that this "does not extend to acts of hyperlinking with respect to press publications" it is left entirely vague as to how to distinguish when a link with some basic link text is allowed without a license and when it needs to be licensed. Indeed, Voss's only real limitation is that the rules "shall not extend to mere hyperlinks, which are accompanied by individual words." Individual words. What goes beyond "individual"? Considering that individual means "single" or "one," it seems clear that under Voss's definition, accompanying a link with two words, may now subject you to requiring a license to link. This is even worse than the awful German law, which only required licenses on something beyond "short" phrases (where even that was not clearly defined).

Back to the awful FAZ piece:

The polemical buzzword "upload filter", to oppose Article 13 of the policy, wasn't much better. Upload filters are not, and were never, part of the proposal, but the word works well in fueling fears. Indeed, Julia Reda managed to convince some of her supporters that if the policy on copyright law is passed, everything on the internet will be filtered, and memes – yes, those beloved memes – will be forbidden altogether.

The fact that the policy says something completely different was of no more than marginal interest. According to the actual proposal, web platforms – and only web platforms – would have been obliged to enter into license agreements with the individual right owners of user-uploaded content or the copyright collectives by which the content is maintained.

This is particularly galling in just how dishonest it is. Saying that this won't impact users, but merely platforms, is bullshit. How do most users communicate these days? On platforms. And saying that platforms then have to license all content, as if the "cost" of that is not then passed along to the users. And that "cost" isn't just in monetary terms. It will, undoubtedly be in terms of perfectly non-infringing works completely taken offline, either because of accidental identification or malicious takedown efforts.

Sure, some people could try to post content on their own sites, but how long will it take until those who support Article 13 move down the stack and argue that hosting companies who allow users to host their own websites are in the same classification as the platforms who are required to obtain licenses under the law?

It gets worse:

In this scenario, it’s the platforms who are responsible for license payments; users have nothing to do with it.

I mean, come on. The platforms are the arbiters of end-users speech in this case. Of course users have everything to do with it. If it's too costly, the platforms will default to blocking the content, rather than allowing it to happen. And, again, any costs will be passed on from the platforms to the users in some form or another.

It would simply have meant a duty for the platforms to be transparent in order to comprehensively account for the licensing and to correctly forward the payments to the respective right owners. If a platform didn’t want to enter such a license agreement, the EU policy would at least hold that platform responsible to keep its own website clean. How it achieves that is up to the platform itself, as long as it prevents copyright infringements.

This is also particularly dishonest. If a platform doesn't want to enter into such a license... they would be responsible for keeping their website clean. And how would they possibly do that? They'd be required to pay for an incredibly expensive (and ineffective) upload filter. So to claim that this isn't a proposal for upload filters is utter nonsense.

Also, the whole "it's up to the platform, as long as it prevents copyright infringement" is fantasy land thinking, as if there's some solution that magically stops all copyright infringement. Whoever wrote this is incredibly dishonest or ignorant of how the world works. There is no solution that prevents all copyright infringement -- other than not existing at all.

Unfortunately, though, many of those who have joined the discussion have refused to put in the intellectual effort to read the proposal in its updated form and understand its intention. This goes for everyone all the way from web associations of political parties to journalist Sascha Lobo, who wrote of "censorship machines"... in "der Spiegel". If only they had read what they publicly decry! Then maybe they would have realised that for the first time, users of platforms that don’t license content would have had substantial leverage, including a right to mediation in the case of the blocking of content. At that point, at the latest, it should have become clear that the term "censorship" misses the mark. Perhaps it was simply too complicated to get hold of and understand the current version of the document?

Leverage? What leverage? If the law requires you not to allow any infringement, you have no leverage at all. Second, the concern about censorship is not at all made up. We know it's real because we see it happen all the time under existing notice-and-takedown regimes, which are significantly less extreme and less draconian than what's required under Article 13. The censorship comes from platforms seeking to avoid significant liability (and costly trials). They are incentivized (heavily) into taking down content to avoid the risk and liability. And thus, they will take down lots and lots of content rather than risk it -- especially when held to ridiculous standards like preventing all infringement from appearing on their platforms.

The dishonesty continues:

But let’s talk about the platforms, since they are the ones affected by this. More specifically, let’s talk about one of the most successful platforms: Youtube. It’s exclusively platforms like Youtube that the policy addresses. Not start-ups, not online shops, and not open source platforms.

This is blatantly untrue. As we noted back in July, those behind the EU Copyright Directive explicitly said the opposite. Here's what they said:

Any platform is covered by Article 13 if one of their main purposes is to give access to copyright protected content to the public.

It cannot make any difference if it is a “small thief” or a “big thief” as it should be illegal in the first place.

Small platforms, even a one-person business, can cause as much damage to right holders as big companies, if their content is spread (first on this platform and possibly within seconds throughout the whole internet) without their consent.

That's from the Committee who voted on the Directive. So to say it only targets platforms like YouTube when the crafters of the law itself say that it applies to small platforms and even one-person businesses, shows just how dishonest supporters are concerning all of this. Separately, it's obvious that it doesn't just apply to YouTube because YouTube already complies with Article 13 via things like ContentID. To argue that the law is targeting them is ridiculous. Why write an entire new law to just say "that thing you're already doing, yeah, keep that up." The author of the FAZ piece then goes on to talk all sorts of nonsense about Content ID.

For years, Youtube has used a system called Content ID, which allows right owners who have uploaded their content to the platform to decide what happens to it if and when it’s used. This ranges from monetarisation – if, for instance, a user uploads a video which includes music, the right owner of that music receives a portion of the video’s ad revenue – to the blocking of the video. Above all else, it’s meant to prevent third parties from making money using other people’s content.

But it gets better still. A system called Copyright Match, which Youtube developed for its channel owners, is just now ready to be put into practice. It is, as it were, a "Content ID" light, and is mainly intended to assist Youtubers in reacting to identical videos. The user who uploaded the video first automatically receives a message and gets to decide what happens to the duplicate, including the possibility to block it.

Is there anybody out there who’d brand this "censorship"? Apparently not – after all, there have been no demonstrations against Content ID and Copyright Match. We haven’t seen public outrage against Youtube’s "censorship machine".

Anyone claiming that there hasn't been outrage over ContentID taking down all sorts of legitimate content simply has no legitimate argument for being part of this debate. There has been massive and sustained outrage over ContentID and how it takes down all sorts of legitimate content. We've had probably over a dozen posts on Techdirt alone of bogus takedowns via ContentID, and people have been highlighting the problems of ContentID leading to inappropriate censorship going back nearly a decade.

If someone is going to insist that (1) Article 13 only targets platforms like YouTube, even when the authors of the law insist that's not true, and (2) state that no one complains about ContentID takedowns, they have no business arguing that the attacks on the EU Copyright Directive are untruthful. They are ignorant or lying. Neither is a good look.

The rest of the article is out-and-out conspiracy theory talking, including (I kid you not) accusations of George Soros' involvement in fighting against the Copyright Directive. And yet, amazingly, some people are taking this shit seriously. It is not serious. It is blatantly dishonest and should be treated as such.

Filed Under: article 11, article 13, censorship, contentid, copyright, eu, eu copyright directive, link tax, upload filters, volker rieck

Creators Supporting Link Taxes And Mandatory Filters Are Handing The Internet Over To The Companies They Hate

from the be-careful-what-you-wish-for dept

On Wednesday, the EU Parliament will vote yet again on the EU Copyright Directive and a series of amendments that might fix some of the worst problems of the Directive. MEP Julia Reda has a detailed list of many of the proposals and what they would do to the current proposals on the table. While there are a few attempts to "improve" Articles 11 and 13, many of those improvements are, unfortunately, very limited in nature, and will still create massive problems for the way the internet works.

Unfortunately, as with the situation earlier this year, many groups claiming to represent content creators are arguing in support of the original proposals, and spreading pure FUD about the attempts to fix them. Author Cory Doctrow has a very thorough debunking of each of their talking points. Here's just a snippet:

Niall says that memes and other forms of parody will not be blocked by Article 13's filters, because they are exempted from European copyright. That's doubly wrong.

First, there are no EU-wide copyright exemptions. Under the 2001 Copyright Directive, European countries get to choose zero or more exemptions from a list of permissible ones.

Second, even in countries where parody is legal, Article 13's copyright filters won't be able to detect it. No one has ever written a software tool that can tell parody from mere reproduction, and such a thing is so far away from our current AI tools as to be science fiction (as both a science fiction writer and a Visiting Professor of Computer Science at the UK's Open University, I feel confident in saying this).

But there's an even larger point that makes it so incredibly frustrating that we've been seeing content creators claim to support the existing draft in order to get back at Google and Facebook. And it's that these rules will lock in the giant internet companies as the only major internet platforms and block out any new upstarts that might compete with them. Cory's explains it this way:

Niall says Article 13 will not hurt small businesses, only make them pay their share. This is wrong. Article 13's copyright filters will cost hundreds of millions to build (existing versions of these filters, like Youtube's Content ID, cost $60,000,000 and only filter a tiny slice of the media Article 13 requires), which will simply destroy small competitors to the US-based multinationals.

What's more, these filters are notorious for underblocking (missing copyrighted works -- a frequent complaint made by the big entertainment companies...when they're not demanding more of these filters) and overblocking (blocking copyrighted works that have been uploaded by their own creators because they are similar to something claimed by a giant corporation).

Niall says Article 13 is good for creators' rights. This is wrong. Creators benefit when there is a competitive market for our works. When a few companies monopolise the channels of publication, payment, distribution and promotion, creators can't shop around for better deals, because those few companies will all converge on the same rotten policies that benefit them at our expense.

We've seen this already: once Youtube became the dominant force in online video, they launched a streaming music service and negotiated licenses from all the major labels. Then Youtube told the independent labels and indie musicians that they would have to agree to the terms set by the majors -- or be shut out of Youtube forever. In a market dominated by Youtube, they were forced to take the terms. Without competition, Youtube became just another kind of major label, with the same rotten deals for creators.

I'd argue that Cory's explanation even understates the problem here. The very design of these laws is to limit competition. What is often ignored in these discussions is that the record labels, movie studios and publishers pushing for these laws have always viewed the world in a particular way: where they "negotiate" against other big companies for how to best split up the pie. They don't want to negotiate with smaller companies. They want just a few companies they can negotiate with -- but hopefully they want the law in their favor so they can pressure that small list of companies to do their bidding. They certainly don't care what's in the best interests for actual creators, because their entire reason for being has been to take as much money out of actual creators' pockets and keep it for themselves.

The idea that Article 11 and Article 13 will, in any way, help creators, rather than legacy gatekeepers is laughable. The idea that it will somehow harm the internet giants is equally laughable. They can deal with it. What it will do is take upstart competitors out of the equation entirely and will significantly remove negotiating leverage for creators. Whereas, in the recent past, they didn't like the deals offered by the major labels, publishers and studios, internet platforms offered creators an excellent alternative, giving them negotiating power. But, with the EU Copyright Directive, those third party platforms will be limited, and thus actual creators will have much less negotiating leverage, many fewer options, and will get pushed back into exploitative contracts with the legacy gatekeepers. It's unfortunate, then, that at least some have been lead to believe these rules are actually in their interest, when they will do significant harm to them instead.

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