EU Moves Forward With Agreement To Fundamentally Change The Internet From Open To Closed

from the closing-down-the-internet dept

Despite the fact that even the staunchest supporters of Article 13 were asking for it to be dropped from the final version of the EU Copyright Directive, that didn't happen. In the final trilogue negotiations between the EU Council, the EU Commission and the EU Parliament, it appears that the agreed upon "compromise" is basically as bad as we feared. It will fundamentally change the entire nature of the internet. And not in a good way. As we recently discussed, the only way this makes sense is if the goal is to have the law be so bad that big internet companies feel forced to pay their way out of it.

And it appears that's what we've got. MEP Julia Reda's summary of the final deal highlights many of the problems with both Articles 11 and 13. Here's the mess with Article 13:

Commercial sites and apps where users can post material must make “best efforts” to preemptively buy licences for anything that users may possibly upload – that is: all copyrighted content in the world. An impossible feat.

In addition, all but very few sites (those both tiny and very new) will need to do everything in their power to prevent anything from ever going online that may be an unauthorised copy of a work that a rightsholder has pointed out to the platform. They will have no choice but to deploy upload filters, which are by their nature both expensive and error-prone.

Should a court ever find their licensing or filtering efforts not fierce enough, sites are directly liable for infringements as if they had committed them themselves. This massive threat will lead platforms to over-comply with these rules to stay on the safe side, further worsening the impact on our freedom of speech.

And with Article 11:

The final version of this extra copyright for news sites closely resembles the version that already failed in Germany – only this time not limited to search engines and news aggregators, meaning it will do damage to a lot more websites.

• Reproducing more than “single words or very short extracts” of news stories will require a licence. That will likely cover many of the snippets commonly shown alongside links today in order to give you an idea of what they lead to. We will have to wait and see how courts interpret what “very short” means in practice – until then, hyperlinking (with snippets) will be mired in legal uncertainty.
• No exceptions are made even for services run by individuals, small companies or non-profits, which probably includes any monetised blogs or websites.

If this becomes law, I'm not sure Techdirt can continue publishing in the EU. At the very least, it will require us to spend a large sum of money on lawyers to determine what our liability risk is -- to the point that it might just not be worth it at all. Article 13 makes a commenting system untenable, as we simply cannot setup a filter that will block people from uploading copyright-covered content. Article 11 potentially makes our posts untenable, since we frequently quote other news sites in order to comment on them (as we do above).

This is, of course, the desire of those supporting both bills. It is not just to close the (made up, mythical) "value gap." It is to fundamentally change the internet away from an open system of communications -- one that anyone can use to bypass traditional gatekeepers, to a closed "broadcast" system, in which key legacy gatekeepers control access to the public, via a complicated set of licenses that strip all of the benefits and profits from the system.

Not only will this do great harm to the general public's ability to communicate freely over the internet, it will do massive harm to artists and creators -- especially more independent ones, who will be effectively blocked from using these platforms to connect directly with their fans. Rather they will be required to go through "licensed" intermediaries, who will demand a huge cut of any money. In other words, it's a return to the pre-internet days, where if you wanted to become a professional creator, your only options were to sign away all your rights to giant conglomerate record labels/studios/publishers.

It is incredible -- and incredibly disappointing -- that the EU is moving towards bringing back such a world, but that is what the latest agreement means.

There is still a chance to stop this from becoming law, though it will take a lot of effort. As Reda explains:

We can still stop this law

The Parliament and Council negotiators who agreed on the final text now return to their institutions seeking approval of the result. If it passes both votes unchanged, it becomes EU law, which member states are forced to implement into national law.

In both bodies, there is resistance.

The Parliament’s process starts with the approval by the Legal Affairs Committee – which is likely to be given on Monday, February 18.

Next, at a date to be announced, the EU member state governments will vote in the Council. The law can be stopped here either by 13 member state governments or by any number of governments who together represent 35% of the EU population (calculator). Last time, 8 countries representing 27% of the population were opposed. Either a large country like Germany or several small ones would need to change their minds: This is the less likely way to stop it.

Our best bet: The final vote in the plenary of the European Parliament, when all 751 MEPs, directly elected to represent the people, have a vote. This will take place either between March 25 and 28, on April 4 or between April 15 and 18. We’ve already demonstrated last July that a majority against a bad copyright proposal is achievable.

The plenary can vote to kill the bill – or to make changes, like removing Articles 11 and 13. In the latter case, it’s up to the Council to decide whether to accept these changes (the Directive then becomes law without these articles) or to shelve the project until after the EU elections in May, which will reshuffle all the cards.

If you're an EU citizen, this next bit is important. Now is the time to start speaking up:

This is where you come in

The final Parliament vote will happen mere weeks before the EU elections. Most MEPs – and certainly all parties – are going to be seeking reelection. Articles 11 and 13 will be defeated if enough voters make these issues relevant to the campaigns. (Here’s how to vote in the EU elections – change the language to one of your country’s official ones for specific information)

It is up to you to make clear to your representatives: Their vote on whether to break the internet with Articles 11 and 13 will make or break your vote in the EU elections. Be insistent – but please always stay polite.

• Look up your representatives’ voting behavior at SaveYourInternet.eu
• Call or visit your MEPs’ offices (in Brussels, Strasbourg or their local constituency)
• Visit campaign and party events and bring up the topic
• Sign the record-breaking petition and spread the word, if you haven’t yet

Together, we can still stop this law.

Filed Under: article 11, article 13, closed, copyright, eu, eu copyright directive, intermediary liability, open

Article 13 Was Purposefully Designed To Be Awful For The Internet; EU Moves Forward With It Anyway

from the just-admit-it dept

As was widely expected, even if it's unfortunately, on Friday evening the EU Council voted to move forward with the latest draft of the EU Copyright Directive, including the truly awful "compromise" version of Article 13 hacked out by the Germans and the French. This happened despite the fact that there's basically no one left who supports this version of Article 13. The public is widely against it. The internet companies are against it. And, perhaps surprisingly, even the legacy copyright companies -- who pushed so hard for this -- are still angry about the result, which they insist is too lenient on the internet.

I've been left scratching my head over why the copyright holders are still pushing for more here. To be clear, the version that the EU Council approved last week would fundamentally change the internet in a massive way. It would, effectively, make it nearly impossible for any website to ever host any user-generated content. In nearly all cases it would require expensive and problematic upload filters. In the few "exceptions" to that, it would still require a massive amount of concessions from internet platforms to avoid liability.

However, the reality here is simple: Article 13 (and, to a lesser extent, Article 11 with its snippet tax) is purposely designed to be awful. The supporters of these efforts keep insisting that it's not going to harm the internet at all, and that it's just about "closing the value gap" or "making the playing field even" or other nonsense along those lines. They insist that it won't create any harm to user-generated content platforms, or to legitimate, non-infringing works. Given that we've already seen how these kinds of systems work in practice, everyone knows that's a laughably false proposition.

However, a bit of truth came out a few weeks back, when Axel Voss, the MEP pushing this Directive forward, put out a "Q and A" page attempting to defend both Articles 11 and 13. We walked through that page sentence by sentence to debunk it, but I kept thinking about why the EU and Axel Voss would push such utter nonsense. Normally, politicians at least try to put forth a flimsy attempt at pretending they're based in reality. But not here.

However, in rereading the "answers" to the questions in the document, the whole thing makes sense under one, and only one, condition: if Articles 11 and 13 are purposefully designed to be internet-destroyingly awful, then the belief is that it will force internet platforms to negotiate some sort of "global licensing" deal. Professor AnneMarie Bridy made this point last month, in noting the following:

But, as you read through Articles 11 and 13 and Voss's "answers" and the comments from the legacy copyright players, it all "makes sense" if you believe the entire point of these bills is not to set up a system whereby the internet companies are installing actual filters and blocking infringing works. Rather, they only make sense if the goal is to make things so goddamn awful for the internet companies that they pay the legacy copyright holders not to sue them. Indeed, the Q&A comes the closest to saying exactly 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. 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. The current legislation offers more wiggle room for platforms to absolve themselves from this liability.

As we pointed out last time, this is utter nonsense, as nothing in the draft actually sets this up. But it does make sense if the entire point of the bill is to be so onerous as to be impossible -- creating a shotgun situation in which the platforms feel the need to pay off the copyright holders not to sue them (jokingly referred to here as "licensing agreements.") This is why the copyright holders are so upset about any form of safe harbor or any way in which platforms might avoid massive, crippling liability. Because if there's a path to abide by the law, then there will be less incentive to pay off Hollywood not to sue. It goes on:

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.

Again, this makes no sense, as the entire point of the draft directive is increased censorship... unless every internet platform pays off Hollywood to leave them alone.

And, again, as Prof. Bridy rightly points out above, all of this only makes sense in the context where there is a fairly small number of rightsholders and an even smaller number of internet platforms, who can gather together and hash out "don't sue us" deals (i.e., "licenses" < -- sarcastic quotes implied). And, again, that only works if the actual provisions of Articles 11 and 13 are so laughably stupid, so ridiculously onerous, so painfully destructive, that the internet platforms are left with no choice (well, that, or shut down, which many would likely have to do).

And thus, it would be better for all involved if Hollywood, the big news publishers, and the record labels just admit this upfront. The entire point of Articles 11 and 13 are that they are awful and destructive to the internet. It is a form of regulatory extortion. "Pay us, or we destroy your internet." At least admitting that would be intellectually honest.

Still, given that, wouldn't it be better for Axel Voss and others to just do what clearly is intended here and write a law that is a lot more honest and just says "Google and Facebook need to pay &euro:X amount to satisfy these flopping legacy industries that failed to innovate." At least that would be much more direct and honest. But, alas, it appears that's wishful thinking. Instead, the EU Parliament will now gather with the EU Council and EU Commission for a new round of "trilogue" negotiations, where everyone will pretend that there's some good reason for this set of regulations, when even the key rationale in support of the effort is that following the law will be so painful and so destructive that the internet platforms will pay off copyright holders to avoid having to comply.

Filed Under: article 11, article 13, copyright, eu, eu copyright directive, eu council, licensing
Companies: facebook, google

Copyright Holders Still Don't Support EU's Already Awful Upload Filter Proposal; Demand It Be Made Worse

from the never-ending dept

As we discussed, over the weekend, France and Germany agreed to a deal to get the EU Copyright Directive moving forward again, specifically around Article 13. The problem was that the "deal" made Article 13 ridiculously bad. It removed all safe harbors, except for the tiniest of new internet platforms, and removed any requirement for copyright holders to actually help internet platforms by identifying what was infringing. It was utter nonsense. And, as we noted, even that wasn't good enough for MEP Axel Voss, the main member of the EU Parliament leading the charge on the EU Copyright Directive. He insisted that no safe harbor for platforms was acceptable at all.

And now the various legacy copyright holders are backing him up on this. As they have before, the movie/TV/sports industry associations have sent a laughable letter insisting they need more.

The undersigned representatives of European producers, broadcasters, and distributors/publishers of film and audiovisual content urgently call upon the EU legislators to reconsider the direction of travel on the proposed Copyright in the DSM Directive. The current version of the proposed Directive does not in any way fulfill the Commission’s stated policy goals: it does not create the promised new rights for us as content producers, broadcasters and distributors/publishers, and it undermines the rights we already have. In short, the proposed Directive is not fit for purpose.

We strongly oppose the notion that a Directive must be agreed at any price – particularly not at the price of grave harm to our sector. We respectfully call for a responsible political and legislative approach to avoid a worst-case outcome that would curtail investment in the European film and audiovisual sector, undermine its competitiveness and strengthen already powerful platforms – outcomes directly contrary to the Commission’s stated policy goals.

Nearly everything stated here is ridiculous. First of all, these very same groups sent a letter in December saying the exact opposite. No, really.

Here they are in December:

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 ECD.

Got that. No changes. No new rights. Codify existing case law to enable rights holders to have more control. Yet, here's their latest letter:

The current version of the proposed Directive does not in any way fulfill the Commission’s stated policy goals: it does not create the promised new rights for us as content producers, broadcasters and distributors/publishers

The "promised" new rights? The very same rights you insisted, just a month and a half ago, were not what the law was intended to do?

If it hasn't become clear by now, these groups will say literally anything if it means getting what they want (i.e., money from Google).

The letter goes on to make a bunch of other wild claims:

More than two years later, the targeted approach and intended balance is completely gone. Fearmongering campaigns funded by powerful stakeholders have led to watered-down provisions on key issues, in particular with regard to Article 13. The proposed texts under discussion do not create any benefit for producers, broadcasters and distributors/publishers of film and audiovisual content and even undermine our existing rights by absolving online content sharing platforms from liability beyond current legislation and case law. This has a direct and harmful effect on the very rights that are the cornerstone of our financing and distribution models and will negatively impact our current enforcement efforts.

This is utter nonsense, and so disconnected from reality that I'm wondering if this is purely a negotiating gambit. The current version of Article 13 is weighted so far in favor of legacy copyright industries and their demands to be gatekeepers and to make the internet into a "licensed-only" content realm, that's it is complete nonsense to suggest that it has no benefit to those industries. I mean, yes, the current Article 13 will do tremendous harm to content producers -- but by making the internet less open and free and useful. Furthermore, there is literally nothing in Article 13 that absolves online platforms from liability beyond current legislation and case law. Literally nothing. Indeed, it only serves to add tremendous liability to every such platform. Even the minor "safe harbor" only exists for tiny, brand new platforms and still requires a level of responsiveness to complaints well beyond existing law.

I remain at a loss as to what their negotiating strategy here is other than going for absolute broke in demanding not just that the internet that we know it be wrecked, but that the EU salt the earth behind it as well.

And, they're not the only ones. Just as I thought I was done with this post, the record labels put out a similar nonsensical letter.

Despite our constant commitment in the last two years to finding a viable solution, and having proposed many positive alternatives, the text – as currently drafted and on the table – no longer meets these objectives, not only in respect of any one article, but as a whole. As rightsholders we are not able to support it or the impact it will have on the European creative sector.

We appreciate the efforts made by several parties to attempt to achieve a good compromise in the long negotiations of recent months. Nevertheless, the outcome of these negotiations in several of the Council discussions has been to produce a text which contains elements which fundamentally go against copyright principles enshrined in EU and international copyright law.

Far from levelling the playing field, the proposed approach would cause serious harm by not only failing to meet its objectives, but actually risking leaving European producers, distributors and creators worse off.

Once again, I'm left a bit speechless by this, as the existing draft of Article 13 is the kind of thing that these guys would normally be salivating over. But if they want to blow up the entire thing because they want all the marbles, well, so be it.

Meanwhile, others are complaining as well. German entertainment giant Bertelsmann (who, way back in the day, was actually one of the more forward thinking of the old line entertainment companies -- until they fired that management team) is also whining about how the law doesn't go far enough. From Spiegel, translated via Google (random aside: perhaps Google should charge news sites for the benefit of these free translations...)

This emerges from a document which the group distributes to individual parliamentarians and which is available to SPIEGEL. It is a so-called non-paper, an unofficial document without a letterhead and without a signature. It states unequivocally: "We see in the directive as a whole no longer the originally intended and we advocated strengthening the right holders and creatives".

[....]

According to the Bertelsmann paper, article 13 "as discussed now contains loopholes for the platform operators, which is why the group rejects it" completely ". "All in all," it continues, "with the adoption of the EU Copyright Directive, there are more disadvantages than advantages for us."

Amusingly, even though this is basically the exact same stance that Axel Voss himself stated earlier this week, now he's frustrated with Bertelsmann as well:

Axel Voss of the CDU, the rapporteur in the European Parliament, is also dissatisfied with the current compromise proposal of the Romanian Presidency on Article 13 because he is not strict enough on the issue of liability. Nevertheless, Voss considers Bertelsmann's approach to be "extremely counterproductive".

In short, we remain in a situation where basically everyone dislikes the current draft of Article 13, though for vastly different (and often conflicting) reasons. The whole process is a mess and even the people who hate Article 13 for being too easy on platforms (which is not even close to true) don't seem to agree on the reasons why they hate it.

Perhaps it's time for Voss and others to admit the obvious: Article 13 was and is a bad idea in any form, and it's time to drop it entirely.

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

Italy Tells Rest Of EU To Drop Articles 11 And 13 From The Copyright Directive

from the protect-web-users dept

Italy, which under its previous government had been supporters of Articles 11 and 13 in the EU Copyright Directive, has now made a pretty clear statement that if the country is going to support the latest directive, it needs to protect the users of the web, and the only way to do that is to remove Articles 11 and 13:

"The priority for Italy is the elimination of the link tax and direct or indirect filters on the content uploaded by the users of the platforms, together with an extension of the exceptions to copyright allowing the development of the data economy. Under these conditions, Italy is ready to adhere to a proposal that should come from the Romanian Presidency ".

"We are calling for change at the European level - concludes the Minister - of the famous articles 11 and article 13 of the directive. The network must be kept free and neutral because it is a fundamental infrastructure for the free expression of citizens as well as for the Italian system and for the European Union itself ".

That's a pretty clear and direct statement. Italy is not looking for yet another round of negotiations on this. It thinks that a link tax and mandatory upload filters are clearly bad for the public. Good for them. Of course, getting other countries to agree with them would help.

Filed Under: article 11, article 13, copyright, eu, eu copyright directive, italy

EU Copyright Directive Has Been Made Even More Stupid, And Some Are Still Trying To Make It Even Worse

from the yet-it-moves-forward dept

So yesterday, we noted that Article 13 was back on thanks to an apparent "compromise" between the French and the Germans as to whether or not small internet platforms would be exempted from Article 13. France was pushing for no exemption and that the same rules apply to everyone, while Germany demanded some protections for smaller companies (those making less than €20 million per year). We knew, according to the reports coming out of Brussels, that France had won, but now the details have come out and it's worse than we thought.

The new plan does have an "exception" for small companies, but it is so ridiculous as to be non-existent. To qualify, a company has to be:

• Less than 3 years old
• Have less than €10 million in revenue
• Have less than 5 million uniques per month

As Julia Reda points out, this basically means almost no platform will qualify for the exemption (and it gets worse from there, but hang on):

Upload filters required

• Discussion boards on commercial sites, such as the Ars Technica or Heise.de forums (older than 3 years)
• Patreon, a platform with the sole purpose of helping authors get paid (fails to meet any of the three criteria)
• Niche social networks like GetReeled, a platform for anglers (well below 5 million users, but older than 3 years)
• Small European competitors to larger US brands like Wykop, a Polish news sharing platform similar to Reddit (well below €10 million turnover, but may reach 5 million visitors and is older than 3 years)

And, yes, it would also likely apply to our comments as well. We don't make €10 million per year, nor do we have 5 million monthly uniques... but we are way older than 3 years old. Even for the tiny number of companies who do qualify for the exception, the text of the directive still demands that they make "best efforts" to license the works. In other words, the whole thing sets up a shotgun negotiation where any platform will be required to license all content, which means that license holders can set any rate they want, and if you don't license, they can accuse you of violating the law. This is madness:

On top of that, even the smallest and newest platforms, which do meet all three criteria, must still demonstrate they have undertaken “best efforts” to obtain licenses from rightholders such as record labels, book publishers and stock photo databases for anything their users might possibly post or upload – an impossible task. In practice, all sites and apps where users may share content will likely be forced to accept any license a rightholder offers them, no matter how bad the terms, and no matter whether they actually want that rightholder’s copyrighted material to be available on their platform, to avoid the massive legal risk of coming in conflict with Article 13.

Hey, and it gets even worse. Whereas in the older draft, it at least required copyright holders to tell platforms what was infringing, that's now been removed:

If you can't see that, it shows that the draft of the text has removed the notice requirement for copyright holders to alert platforms to any infringing material, directly removing the phrase "for which the rightsholders have provided the service providers with the relevant and necessary information or submitted a notice..." In other words, copyright holders don't even have to alert the platforms any more -- and platforms might still be deemed liable for any infringing content appearing on their platform. Even if they don't know about it. Which is insane.

Later on, the draft also removes a phrase that requires the copyright holders to work with the platforms, because that's apparently too much of a burden for the copyright holders:

I do wonder if this will get Hollywood and the legacy recording industries back on board.

However, here's the incredible bit. Despite Article 13 now being demonstrably even more ridiculous, the MEP in charge of pushing it forward, Axel Voss, is complaining that it's not idiotic enough yet. In response to this draft from the EU Council (which is expected to be approved on Friday), Voss stated:

“What France and Germany have agreed is a new safe harbor for small platforms, able to exist beyond what we already have today. It’s something we can’t accept,” Axel Voss said at a conference in the European Parliament.

Are you fucking kidding me? He's saying even that tiny, useless safe harbor that will apply to basically no one is too much?

Voss and the entertainment industry are going for broke here. They recognize this is their last best chance to really fundamentally change the internet. It is an attempt to completely wreck its intended purpose as a communications medium and turn it into a broadcast medium of licensed content controlled by gatekeepers (the legacy companies who used to control movies, music, news and books). Don't let them get away with this. Tell the EU Parliament that this is completely and totally unacceptable. EU Parliamentary elections are coming up in a few months, and any MEP should be told over and over and over again that voting to destroy the internet in this way means that they no longer deserve their job in the EU Parliament.

Filed Under: article 11, article 13, axel voss, censorship, copyright, eu, eu copyright directive, eu council, eu parliament, intermediary liability, licensing, safe harbors, upload filters

Article 13 Is Back On: Germany Caves To France As EU Pushes Forward On Ruining The Internet

from the bad-news-for-memes dept

When last we checked in on the EU Copyright Directive it had been put on hold when the European Council (with representatives from all the member states) didn't have enough votes to move forward on a so-called "compromise" draft. Most of the council rejected it for the right reasons -- though a few (including France) were holding out to make the law worse. Since then there has been an ongoing back channel negotiation between France and Germany over whose vision would win out. Both of them support very problematic versions of the Directive, though France's is worse. Specifically, France doesn't want any exemptions for smaller internet websites in Article 13 (which will effectively make internet filters mandatory), while Germany wanted to include at least some safe harbors for smaller sites. After a bunch of back and forth, it's now being reported that Germany has caved to France and will now support the Directive, with very little in the way of protections for smaller sites. This is on top of all the other awful stuff in the Directive, including mandatory filtering (that they pretend is not mandatory filtering), huge fines, and liability for any site allowing infringement. The draft apparently still includes a weird and mostly useless safe harbor for sites hosting user-generated content -- which is what made the legacy entertainment industry bail out on its support of the Directive.

So, to be clear, there is now a draft that is worse than the draft that couldn't get the Council's approval a few weeks ago, and that will have an even bigger impact on the internet by sweeping up tons of smaller sites as well as the larger ones, which will do serious harm to any sites that host user-generated content. And you can't find anyone -- outside of the company selling internet filters -- who supports this. The internet companies are all still against the bill. The legacy entertainment companies are whining that it doesn't go far enough.

And, yet, this draft is likely to be added back on the schedule for a meeting this Friday.

There is nothing good about this. The EU bureaucrats negotiating this get really, really annoyed by anyone suggesting that this bill will kill off "memes," but that's not an exaggeration. The bill is literally designed to make it impossible for a site that has not purchased licenses from everyone to allow users to post new content. Meme culture was built almost entirely on free and open message boards and social media, without licenses. But hosting such a site in the EU will now be effectively impossible -- or very, very expensive, with massive restrictions, filters and lockdowns. In such a world, it is difficult to see how new memes can take off, outside of a narrowly prescribed set of "officially sanctioned/licensed" memes -- and we all know what kind of quality that will bring.

This whole thing is an exercise in stupidity, brought about by a cynical legacy entertainment industry that made up a fake concept called "the value gap" that they insisted needed to be closed. And the only way to "close" it, according to the very same lobbyists, was to effectively turn off what made the internet great: the fact that it is, and has always been, an open medium for communication and sharing.

This can still be stopped, but it's going to rely on the EU Parliament actually having a backbone and saying that this is not acceptable. And that is going to require people in Europe to contact their MEPs and telling them not to wreck the internet.

Filed Under: article 11, article 13, copyright, eu, eu copyright directive, eu council, filters, france, germany, intermediary liability, mandatory filters, memes, safe harbors, trilogue negotiations

Independent Musician Explains Why Article 13 Will Be An Utter Disaster For Independent Artists

from the because-they-rely-on-these-platforms dept

A decade ago, when there were still people laughably insisting that the internet was the worst thing that ever happened to musicians, I kept pointing out examples of artists who were creatively embracing the internet to great success -- connecting with fans, building new business models, and succeeding. And every time I did that, people would complain that this example was an "exception" or an "anomaly." And, they had a habit of qualifying any success story -- even if the qualifications were contradictory. For example, if I highlighted an independent artist's success, people would say "well, that's just a small independent artist, they have nothing to lose, no big rock star could ever succeed that way." And then, when I'd highlight a big rock star having success embracing the internet, I'd be told "well, it's easy for him, he already had a huge following." It got so silly that back in 2008 one of our commenters coined "Masnick's Law" to describe this phenomenon:

Masnick's Law states that in any conversation about musicians doing something different to achieve fame and/or fortune someone will inevitably attempt to make the argument that "it only worked for them because they are big/small and it will never work for someone who is the opposite," no matter how much evidence to the contrary might be readily available.

In 2009, getting fed up with this, I wrote a long article detailing examples of a whole bunch of success stories of artists embracing the internet mixing in ones who were hugely famous with ones who were moderately successful and ones who were small independents... and someone complained in an email that these were all exceptions.

Over the past few years, I thought this kind of "exception" thinking had mostly died out, but it showed up again recently. We posted famed science fiction author Ken MacLeod's excellent opinion piece arguing that, even though he's a big supporter of copyright and against anyone pirating his books, he's absolutely against the EU's plans for Article 11 and Article 13 in the EU Copyright Directive. The key line: "Far greater than my interest in copyright is my interest in a free and open internet – or, failing that, in keeping the internet as free and open as it is now."

And, in the comments... Masnick's Law reared its ugly head again:

Straw-man argument, since he has a big publisher to both pay him and defend his property rights. He's not an indie who markets his own work on the internet and has to fight mass piracy on his own. He doesn't need copyright protection when he has distribution sending his fans to pay for his work (while the same fans might pirate the indies).

He is the one who wants big publishers to continue to dominate and profit, while the indies want direct access to the public and the elimination of the middleman that is this man's meal ticket.

Of course, that's nonsense. That comment is based on the idea that you need to "fight" mass piracy, rather than looking for ways to build a successful business model that involves connecting with your true fans.

And, of course, the impact on independent artists will be even more serious than those signed to big publishers/labels/studios/etc. Indeed, Ken's own Twitter feed pointed me to an independent musician in the UK, Stephen Blythe, who has written about why Article 13 will make life worse for him as an independent musician. After detailing his situation as a musician, he explains that if you want to get your music out there, so that you can build a fanbase, you need to get your music onto the "most popular music" sites. And to do that you have to use a special third party:

If an independent artist wants to get their music out there into the world, to the most popular music sharing sites, they need to use some kind of recognised distributor – as direct submissions are either impossible, or extremely restricted. A pile of these have sprung up, including Amuse, RouteNote, DistroKid, etc. Some charge a subscription fee per year, some take a cut of any revenue generated, and some of them don’t even have a website – operating just from an app. The concept is simple: You send your music to them, and they distribute it digitally to the various partners. One of these partners is YouTube.

But it turns out that those services, as part of their "value add" will "enforce copyright" for you:

What isn’t made clear by these distribution networks is that by submitting your music to YouTube, you essentially give the distributor a licence to enforce your copyright on the platform using the ContentID system. This automatically detects any music uploaded along with a YouTube video (including short clips), and flags it up as unauthorised. To many this might sound great. Stop people stealing your stuff!

The problem of course is that there is very often no way to denote authorised uses or channels with these common distribution services.

He then details two separate scenarios of artists being harmed by this kind of "enforcement" including one that happened directly to himself:

An artist (A) is asked by a fellow musician (B) if they would be interested in a collaboration. The process is simple: B will supply A with some vocal samples that A can then chop up and use however they wish. A gladly accepts, and comes up with a whole electronic composition that brings the vocals to life. B loves the track, and asks if they can use it on their upcoming DIY release. A agrees. B’s friend runs a small label who agrees to put out the album, and they use a distribution service which sends the album to all the major partners automatically – including YouTube’s ContentID system. A few years later, A is producing short video blogs and decides to use one of their old tracks as background music. It gets flagged up as a copyright violation automatically, which A disputes – but the appeal is rejected by the distributor, who has no knowledge of how the track came about in the first place.

He then explains that in a world where everything involves a massive ContentID-like filter, you create a terrible situation for independent musicians, who are at the mercy of much larger companies with no flexibility:

1. Independent musicians are at the mercy of a system which locks them out from negotiating their own contracts without major label backing, and they therefore have to rely on gatekeepers which provide an inadequate level of information and control over their own music.
2. Artists who are starting out lack the information required in order to make informed decisions about their interaction with such services, and can inadvertently give away their ability to exploit their creations commercially due to how the systems are constructed.
3. The ContentID approach to copyright enforcement gives huge clout to the first entity to register a piece of work within their system – which is rarely going to be the artist themselves.
4. This model has no room for the ad-hoc, informal, and varying ways in which independent musicians create and share their works online.

Or, in short:

The current ContentID system works on a first-come, first-served basis. It puts huge power in the hands of intermediary distribution services which do not provide a service that can ever give artists the amount of control over their licenses they would require to fully exploit their creations. The nature of the beast means that informal collaborations between like-minded folks can unexpectedly tie up their creative expression years down the road. Article 13 will only expand these systems, which will inevitably be less sophisticated on other platforms than ContentID. Independent artists lose the ability to share their work even further.

I'd argue it goes much further than that. First, the major record labels see everything stated in the paragraph above as a benefit of Article 13. Giving huge power to the middlemen gatekeepers puts them back in the position they were in year's ago, where they get to decide who gets distribution and who doesn't. That system created a world in which musicians had to hand over their copyright and nearly all of the revenue generated from their works in exchange for a pittance of an advance (which was really just a loan). So, putting more gatekeeper power back in their hands is the goal here.

Second, and even more concerning, is that Article 13 is premised on only the largest platforms being able to comply -- meaning that there will be less competition on the platform side and fewer and fewer places for independent artists to distribute their work, should they wish to do so. That gives them fewer options and less ability to build a fanbase, unless they get plucked out of obscurity by a giant gatekeeper (again, going back to the way things were a couple decades ago).

Now, I'm sure that someone will pop into the comments and point out that this example doesn't count because it's just a "small, independent artist," and that his concerns don't matter to "real" artists (meaning major label ones), but, haven't we played that game long enough?

Filed Under: article 13, censorship, contentid, copyright, eu, eu copyright directive, filters, independent musicians, masnick's law, stephen blythe

Author Ken MacLeod: Please Don't Pass The EU Copyright Directive In My Name

from the keep-the-internet-open dept

As a full-time writer I have an interest in copyright. However arguable its principles and arbitrary its scope, I benefit from it. When I trip over an online pirate version of one of my books, I shamelessly snitch the pirates to my publishers.

But would I want the platforms that enable this piracy to be liable for it? No. Because then the platforms – mostly giant corporations whose names we all know – would have every incentive to screen for any content that might conceivably breach copyright. Given the volumes involved, they would have to attempt to automate their filters. Good luck with designing an algorithm that can distinguish rip-offs from fair dealing!

Far greater than my interest in copyright is my interest in a free and open internet – or, failing that, in keeping the internet as free and open as it is now. The internet is already a long way from the wild wonderland I first stepped into in the mid-1990s. Predictably enough, that early free-for-all has shrunk to a handful of giant corporations, who -- like some fast-forward cartoon version of the last chapter of Marx's Capital: Vol 1 -- usurp and monopolise all the advantages of this process of transformation.

It's tempting to think that the EU is standing up to the corporate behemoths in the interest of creators. But Articles 11 and 13 of the proposed directive on Copyright in the Digital Single Market aren't an instance of democracy against capitalism. Drafted with scary imprecision, they at best licence one group of corporate behemoths – the big publishers and creative industries – to harass another, the digital platforms. At worst, they enable the digital platforms to further censor and blinker us, their users.

The European Parliament would do well to ditch the offending articles, leave creators and publishers to deal with egregious rip-offs of their work, and leave the rest of us to meme and link and parody and remix as we please.

Kenneth Macrae MacLeod is a Scottish science fiction writer who’s published books such as The Star Fraction (1995) to The Restoration Game (2010). In 2009 he was a writer in residence at the ESRC genomics policy and research forum at Edinburgh University. He’s won numerous awards including the BSFA award and Prometheus Award, both for Best Novel.

Filed Under: article 11, article 13, copyright, eu, eu copyright directive, free speech, intermediary liability, open internet

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

from the lobbyist-influence dept

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

Here's Geoff Taylor from BPI:

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

And here's Richard Ashcroft from PRS for Music:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EU Cancels 'Final' Negotiations On EU Copyright Directive As It Becomes Clear There Isn't Enough Support

from the breaking:-the-internet dept

So, this is certainly unexpected. Just hours after we pointed out that even all of the lobbyists who had written/pushed for Article 13 in the EU Copyright Directive were now abandoning their support for it (basically because the EU was considering making it just slightly less awful), it appears that Monday's negotiations have been called off entirely:

Apparently multiple countries -- including Germany, Italy, the Netherlands and Poland -- made it clear they would not support the latest text put forth by Romania, and therefore would have blocked it from moving forward. Monday's negotiations were supposed to have been the "final" negotiations (after the previous "final" negotiations that didn't accomplish much) around a "compromise" bill that then would have gone out to be voted on by the EU Council, the EU Committee and the EU Parliament in the next few months. However, with the news of all those countries (via the EU Council) deciding to vote against the proposal, it effectively blocks it for now.

MEP Julia Reda now has the full breakdown of the votes, noting that 11 countries voted against the "compromise" text: Germany, Belgium, the Netherlands, Finland, Slovenia, Italy, Poland, Sweden, Croatia, Luxembourg and Portugal. That's... a pretty big list. Reda points out that most of those countries were concerned about the impact on users' rights (Portugal and Croatia appear to be outliers). That's pretty big -- as it means that any new text (if there is one) should move in a better direction, not worse.

As Reda notes, this does not mean that the Copyright Directive or Article 13 are dead. They could certainly be revived with new negotiations (and that could happen soon). But, it certainly makes the path forward a lot more difficult. Throughout all of this, as we've seen in the past, the legacy copyright players plowed forward, accepting no compromise and basically going for broke as fast as they could, in the hopes that no one would stop them. They've hit something of a stumbling block here. It won't stop them from still trying, but for now this is good news. The next step is making sure Article 13 is truly dead and cannot come back. The EU has done a big thing badly in even letting things get this far. Now let's hope they fix this mess by dumping Articles 11 and 13.

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