Record Labels, Film Studios, Tech Companies And The Public Now All Agreed That Article 13 Is A Disaster

from the why-is-it-still-moving-forward? dept

Earlier this week, we noted that the film, TV and sports industry associations had come out against Article 13 in the EU Copyright Directive. It was for all the wrong reasons of course -- mainly, that (1) negotiators were exploring very minor safe harbors that would give internet platforms conditions they could follow to avoid liability and (2) they were hoping that a few court cases would break their way and they'd get an even better result in the courts -- but it was still notable. After all, much of Article 13 was pushed for by those same industry reps.

Still, some suggested that while the movie and TV folks wanted out, the record labels didn't, as they had been even more instrumental in crafting Article 13, with their entirely mythical concept of the "value gap" (a thing that does not actually exist) which they incorrectly believed Article 13 would solve. However, on Thursday, even the record labels bailed out on support for Article 13, though it appears for the same awful reasons as the film studios. They don't go quite as far as the film and TV folks (who ask for Article 13 to be put on hold indefinitely), but rather call for major changes:

With the final trilogue only days away, European creatives and rightsholders urgently inform EU policymakers that the 13 January draft text of the proposed Copyright Directive does not meet the original objective of Article 13 and urgently requires significant changes.

They don't really explain why they're so upset, but it's not difficult to see that it's the same reason as the film, TV and sports organizations. Again, Article 13 is a kind of bait and switch. All of the stuff people are complaining about -- the mandatory filters, notice-and-staydown, the insane fines -- all go away if the internet platforms agree to basically cough up all their money to the legacy copyright gatekeepers. The "secret" truth behind Article 13 is that even the folks crafting it know that all of the demands are absolutely ridiculous. It's just that they've included a "way out." And that "way out" is to agree to insane licensing rates from the legacy copyright players. Despite the nonsense you'll hear, this won't create "fair market" rates or "fair" anything. You don't negotiate a fair market rate when you're basically told that if you don't agree to whatever rates the copyright gatekeepers set, you'll get fined billions of dollars.

So any path to avoiding having to agree to a license at the end of a shotgun is seen as a non-starter for the entertainment industry. Though, their latest bit of petulance about not getting everything they want kind of gives away the gameplan. This was never about stopping infringement. It was always about a government-mandated wealth-transfer from the companies who actually innovated to the companies that failed to innovate.

Either way, if they no longer like the deal, the tech companies have never liked the deal and (most importantly) the public hates the deal... then why is the EU still pushing forward with it? Who actually still supports it, beyond the politicians in the EU? It's one thing to say that a true political compromise makes no one happy, but this is a case where everyone is fundamentally against the end result entirely.

So, please, European bureaucrats: let's just leave Article 13 in the trash pile where it belongs.

Filed Under: article 13, copyright, eu, eu copyright directive, intermediary liability, record labels, safe harbors
Companies: ifpi

Latest EU Copyright Directive Still Demands Internet Companies Wave Magic Wands

from the this-is-not-how-you-regulate dept

The EU Copyright Directive continues to be a total and complete disaster. It's so bad that neither of the two main groups lobbying around it -- the legacy entertainment industry and the big tech companies (with the vast majority of the lobbying coming from the copyright sector) are both unhappy with the bill (though for opposite reasons). And yet, despite all of this, the EU continues to soldier forward with a new proposal and a new draft that still requires that internet companies do the impossible:

The specific suggestions being pushed in the revised Copyright Directive suggests that whoever is putting this stuff together still has no idea what they're talking about. There's an attempt at fixing Article 11 (the snippet tax) not by actually fixing it, but at least making sure that it doesn't apply to "individual words or very short extracts."

The rights referred to in the first subparagraph shall not apply in respect of uses of individual words or very short extracts of a press publication.

What does "very short extracts of a press publication" mean? Well, we'll have to see what courts think of it after extensive litigation, I guess.

More importantly, Article 13 remains an utter mess where they still think that internet companies can just wave a magic wand and suddenly they will stop all infringement without also taking down non-infringing content. The text still pushes for online platforms to have to take out licenses for everything -- and on the question of takedowns of stuff that isn't actually infringing, it just says "don't do that":

The steps taken by the online content sharing service providers should be without prejudice to the application of exceptions and limitations to copyright, including in particular those which guarantee the freedom of expression of users.

Users should not be prevented from uploading and making available content that they have produced and that contains existing works or other protected subject matter for specific purposes of illustration or parody when these uses do not create significant harm to rightholders.

First of all... how is that even possible to do these things without running afoul of the other parts of the law? The bureaucrats don't say because they don't understand any of this. Second, this new text basically only says that this applies to "parody" or when the uses "do not create significant harm to rightsholders." But, who determines that? We've seen rightsholders go nuts over all sorts of uses that wouldn't create actual harm (in some cases that would lead to more revenue). All of this is just left up to the idea that internet companies will magically figure out what's okay and what's not.

As the EFF notes in a thorough post, so much of Article 13 is really the EU putting out vague statements about what should be allowed and what should not be allowed, without any notion of how that'll work and then saying you two giant industries figure this mess out. Indeed, as scholar Annemarie Bridy pointed out recently in a wonderful (if terrifying) tweet storm, the entire Article 13 appears to be based on a model of the world that isn't accurate -- one where there are just a few internet companies negotiating with just a few content companies:

The whole thing remains an utter disaster that is moving forward even as no one is left who really seems to support it. The public doesn't want this shit. The big entertainment companies are now asking for Article 13 to be set aside. The big internet companies have always been against it. And yet it rolls ever forward, with a bunch of clueless, technically illiterate bureaucrats basically saying "well, if we just say big companies should do this without allowing any negative consequences to happen, surely they can figure it out..." and tossing it over the fence.

This is not how sane policy is made. This is how you fuck up the internet.

Filed Under: article 11, article 13, censorship, copyright, eu copyright directive, filters, intermediary liability, magic wand, safe harbors

Hollywood Asks EU To Drop Article 13 Entirely, Because It Might Possibly Have A Tiny Compromise For The Internet

from the going-for-broke dept

Earlier today, we had a post detailing the completely ridiculous "defense" of Articles 11 and 13 in the EU Copyright Directive that the EU Parliament's JURI Committee released. It was so full of misleading statements, outright lies, and contradictory arguments that it would have been hilarious, if it wasn't trying to justify changing the entire internet for the worse. However, those of us who think that the EU should drop Article 13 (and Article 11) entirely now have a very unlikely ally: the legacy entertainment industries, who were the ones lobbying heavily for Article 13 in the first place.

Really.

As we had noted last month, as the negotiations moved forward on Article 13, the TV, sports and film industries -- calling themselves the "creative sectors" -- have been suddenly freaking out and asking the negotiators to hit the brakes, or at least carve them out of Article 13. They were doing this for all the wrong reasons of course. Specifically, negotiators had begun to consider a very, very limited (and ridiculously weak) safe harbor for internet platforms, that if they followed a few key steps, they'd be able to avoid having massive liability foist upon them if they let any users sneak through an upload of infringing content (they'd still have to pull it down quickly after it was uploaded, but they wouldn't be facing billions in fines).

And, now with Article 13 just about finalized and it looking absolutely terrible in almost every single way... Hollywood is going for broke and now calling for negotiations on Article 13 to be suspended entirely. Again, they're doing this for totally the wrong reasons, but considering that absolutely no one wants Article 13 at this point, shouldn't EU negotiators just drop it?

We understand the eagerness to bring the negotiations to a close within the current mandate. However, rather than rushing the highly controversial Art. 13 and seeking conclusion of this provision, no matter the jeopardy to the European copyright framework and no matter the prejudice and damage to the creative sectors before the end of this legislative period, we urge EU co-legislators to suspend negotiations with respect to this article.

We agree. Negotiators should drop Article 13 entirely (Article 11 as well, but we'll discuss that another time).

This letter is signed by a bunch of legacy copyright interests, with the main one being the MPA (the MPAA's international arm). And their reasoning, as before, is that they actually think that they're going to get a better deal (i.e., no safe harbors for internet services at all) in the EU Courts:

One of the main justifications for Article 13 articulated in the Commission’s original impact assessment back in 2016 was the absence of a CJEU referral that could bring clarity to the question of whether an uploaded content service is responsible for acts of communication to the public and/or can benefit from the hosting provider status under the E-Commerce Directive. Since that assessment the situation has now fundamentally changed. In the meantime, such a referral has been launched by a recent decision of 13 September 2018. The German Federal Court of Justice (Bundesgerichtshof) referred a case to the CJEU involving YouTube/Google and certain rightholders, for clarification of this very issue (case C-682/18 Google e.a.).

Basically, Hollywood and its friends pushed for Article 13 when they thought that courts had read the law (correctly) to mean that the safe harbors already existing in the E-Commerce Directive applied to internet platforms hosting user generated uploads of content. However, at least one German court has mucked that up, and that case is being reviewed by the EU Court of Justice... and Hollywood is hoping that the CJEU will just declare that these safe harbors don't apply for platforms hosting content. Basically, Hollywood is going for broke. It truly wants to make the internet change massively, such that there is no more "user generated content" platforms unless those platforms first agree to throw money at Hollywood not to sue them. It's pretty close to an outright extortion scam.

Either way, we're happy that Hollywood has now properly recognized that EU negotiators have no business moving forward with Article 13, and we're happy to agree that it should be dropped.

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

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

EU's First Attempt At Building A List Of Evil Pirate Sites... Lists Non-Infringing Sites

from the not-inspiring-confidence dept

In mid-January, the EU is hoping to finalize the EU Copyright Directive, including Article 13, which will effectively create mandatory copyright filters for many internet websites (while, laughably, insisting it creates no such burden -- but leaving no other option for most sites). One of the key arguments being made by supporters of Article 13 is that it's crazy to think that this law will be used to block legitimate content. This is pretty silly, considering how frequently we write about bogus DMCA takedowns. As if trying to prove just how bad they are at properly classifying infringing content, the EU recently released its "Counterfeit and Piracy Watch List", which is a sort of EU version of the USTR's "notorious markets" list. That list has been widely mocked for basically declaring any site that Hollywood doesn't like "notorious", even if no court has ever ruled that it's breaking the law.

It would appear that the EU list has the same sort of problem. For example among the sites listed in the EU report is Cloudflare, a platform used by tons of internet companies (including Techdirt) as a CDN or to protect against DoS attacks (among other things). Cloudflare is simply a tool -- like a phone line -- that tons of internet companies use. If some of them are doing things that are against the law, that should be on those sites, not Cloudflare. Unfortunately, the EU doesn't seem to care.

CloudFlare is a US based company, which provides hosting service combined with other services, including CDN services and distributed domain name server (DNS) services. According to the creative industries (film, music, book publishers, etc.) and other organisations, CloudFlare is used by approximately 40% of the pirate websites in the world. It operates as a front host between the user and the website's back host, routing and filtering all content through its network of servers. Out of the top 500 infringing domains based on global Alexa rankings, 62% (311) are using CloudFlare's services, according to stakeholders. A sample list of 6,337 infringing domain names presented by the film industry showed over 30% (2,119) using CloudFlare's services.

This is, again, kinda like saying "40% of illegal bookmakers use AT&T to provide phone service, and thus we should all blame AT&T." Except, that's not how it works. Lots of sites use Cloudflare, because Cloudflare is good at what it does. It's providing infrastructure. Also, the EU gets it wrong in claiming that Cloudflare provides "hosting service(s)." Cloudflare is a pass-through service. It is not hosting the content of the websites it works with.

Including Cloudflare on a list of dangerous pirate sites suggests that whoever put together such a list (EU regulators) or whoever suggested its inclusion ("film, music, book publishers, etc.") haven't the slightest clue what they're talking about.

And it gets worse. Torrentfreak later notes that a few of the "pirate sites" listed in the EU's report no longer host any infringing content, and have actually changed hands entirely to someone who is pointing them to legitimate sources of purchasing/subscribing to content. As Torrentfreak correctly notes, some of these sites used to mostly be repositories of links to infringing content, but most stopped a while ago, including some that stopped well before this report was put together.

Now, some may argue that it doesn't matter -- since those domains used to be used for infringement, that's all that matters. That, however, seems incredibly silly. The fact that a few of those links are now driving people to legitimate, licensed sources, certainly shows why blocking such links or sites entirely is a truly silly idea. Those sites can be better purposed in a way that actually adds value and provides traffic to licensed content providers.

But, really, if we go back to the questions around Article 13, it should lead us to question what is going to happen here when the rules state that sites could face massive fines for allowing any infringing content through when even the EU itself -- the folks creating this regulation -- can't seem to do a very good job of accurately naming "infringing" sites. How is it that all of these internet companies, which will face the burden of Article 13, be expected to accurately figure this stuff out when the regulators themselves are so confused?

Filed Under: article 13, copyright, eu, eu copyright directive, piracy, pirate watch list
Companies: cloudflare

Copyright Industry Lobbyists Can't Even Get Their Story Straight On Article 13: Does It Expand Copyright Or Keep It The Same?

from the get-your-act-together dept

Last week, we pointed out that while you might hear copyright industry lobbyists and EU regulators repeatedly insisting that all of the concerns being raised about the EU Copyright Directive are being driven by "big tech" lobbying, the actual data shows that over 80% of the lobbying effort has come from legacy copyright industries, pushing really, really hard for a massive expansion in copyright law that will fundamentally change how the internet works (and not in a good way). It's become clear, watching these lobbyists in action, that they will say absolutely anything, no matter how ridiculous, if they think it will lead to getting their beloved Article 13, where the sole purpose is to fundamentally change the internet from a communications medium, in which anyone can share anything they create, to a fully broadcast medium, where everything must first be licensed. Obviously, the legacy copyright companies want this badly, because they're in the business of licensing. And, if everyone suddenly needs to get licenses, suddenly they become relevant again.

But, as we mentioned last week, those same lobbyists are freaking out that EU regulators might possibly add a "safe harbor" to Article 13. Even with a safe harbor, Article 13 is a problem, but without a safe harbor it's a disaster. The "safe harbor" would just mean that if internet companies follow specific steps to rid their platforms of infringing works, then they can't get sued. But the copyright players badly want to be able to sue, because that's how they rid the internet of this amateur competition -- by making it too costly to continue to host.

But in one of the letters sent last week, by the movie and sports industries, they made an odd argument against the safe harbor. Hilariously, they claim that a safe harbor would change copyright law, and the purpose of Article 13 is to codify existing case law. Really:

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. Unfortunately, the Value Gap provision has mutated in such a way that it now creates a new liability privilege for big platforms and therefore even further strengthens the role of OCSSPs to the direct detriment of rightholders.

First of all, this is a completely laughable attempt to rewrite history. The E-Commerce Directive's Article 14 contains safe harbors that have always been held to apply to internet service providers. But, still, it's odd to see them claiming that Article 13 isn't supposed to do anything new.

Apparently, however, this new message didn't make it to all the lobbyists working on this thing (either that, or they just don't care one bit if they give conflicting messages, as long as they get what they want). Neil Turkewitz, a former RIAA VP, who was a huge part of the RIAA push to dismantle the internet bit by bit over the past few decades, has written up some crazy rant about Article 13, where he makes exactly the opposite argument that his buddies in the film and TV industries were making. Rather than merely codifying existing law, Turkewitz wants you to know that Article 13 is a wonderful new idea:

Articles 11 and 13 are designed to create markets where none presently exist, or are marred by unfair competition — to breathe life into property interests that are themselves protected under international law.

This is obviously crazy as well and has no basis in reality. There is no "unfair competition." What Neil and his buddies consider "unfair competition" is any competition in which the deck isn't stacked in massive favor for the record labels. Anything that allows an open internet, where there is competition and artists can (*gasp*) go direct to the audiences they want, and explore new business models, is an abomination that must be destroyed. And the best way is to call it "unfair competition."

Still, these two arguments can't go together. Is Article 13 codifying existing law, as the MPA says? Or is it creating new markets where none presently exist, as per the ex(?) RIAA guy?

Once again, these guys are showing why you can't trust a single word that they say. They will say absolutely anything to get their way and fundamentally take away the open internet.

On a separate note, Turkewitz's laughable article gets more laughable the more you read. I particularly enjoy this part:

But regardless on one’s views of existing safe harbors, one thing is clear — Congress and the Administration should refrain from locking in what is essentially the beta version of internet governance — rules adopted at the dawn of the commercial internet.

If you know anything about the past three decades that Turkewitz spent at the RIAA, one of his focuses was doing exactly what he's now complaining should not be done. He was a key player in pushing the worst aspects of copyright law into every international trade agreement, locking in bad ideas such that they couldn't be changed -- in particular the anti-circumvention provisions of the DMCA. For him to now whine about an attempt to use the same mechanisms to include the "protective" elements for user-rights and free speech in the form of the safe harbors of the DMCA is particularly bold. It's amazing anyone takes him seriously.

Filed Under: article 13, copyright, intermediary liability, intermediary liability protections, neil turkewitz, safe harbors

YouTube's $100 Million Upload Filter Failures Demonstrate What A Disaster Article 13 Will Be For The Internet

from the your-future-internet dept

The entire Article 13 debate is a weird one. It appears that both the recording industry and the film industry are going for broke on this one. The lobbying on this started a few years back, with the rather clever but completely bogus idea of the "value gap."

In case you haven't followed it, the idea of the "value gap" is that (1) YouTube pays less to musicians record labels than Spotify and Apple Music do for streams. (2) YouTube's general purpose video hosting platform is protected by intermediary protection laws (DMCA 512 in the US, Article 14 of the E-Commerce Directive in the EU) allowing users to upload whatever they want, and YouTube only has to takedown infringing works upon notice. (3) Services like Spotify and Apple Music license all their works. (4) The "lower rates" that YouTube pays must be the result of the safe harbor, and the difference in payments is the "value gap." Article 13, then, is supposed to "fix" the value gap by completely removing any notice-and-takedown safe harbor for copyright-covered works.

Of course, almost all of this is bullshit. YouTube is used in very, very different ways from Spotify and Apple Music. While YouTube does have a competing music streaming service that is similar to Spotify/Apple Music, its payment rates there are equivalent. But on the general open platform, the rates are different. This is not because of the safe harbors, but because people use the platforms very, very differently. People use Spotify/Apple Music almost like radio -- to put on music that is constantly streaming playlists of songs. YouTube has all sorts of content, most of it not music, and while some may use it as a radio-style experience, that is fairly rare. And the recording industry has always received different rates based on different platforms and different kinds of usage.

Meanwhile, Article 13 will do nothing to solve the "problem" that all the "value gap" people keep insisting is a problem. That's because Article 13 will basically require an upload filter that will spot infringing works and block them before they get on the site (there's more to it than that, but that's a basic approximation of what the law will require in practice). Basically the only company that has actually done this already... is YouTube! YouTube has its ContentID system, which it has spent over $100 million developing, and which can block uploads and pull down content.

And... let's take a look at just how much damage such a system causes. Remember, YouTube has spent more on its filter than anyone else (by far) and it is considered easily the most sophisticated and advanced such filter.

And it sucks.

Last week, I saw musician Dan Bull (who wrote/performed the Techdirt podcast theme song) complaining that he had he had received a copyright claim on a video that was his own work, and from someone whose work was not in the video at all:

The issue, apparently, was that both Dan Bull and the claimant -- another independent rap artist -- had used used the same instrumental, that was available on a "non-exclusive" basis, meaning lots of artists could use it. That indie artist then tried to monetize their own work, but ContentID found anyone using the same properly licensed instrumental and gave people a strike.

And, even the way in which YouTube communicated with Dan Bull was ridiculous:

If you can't see that, YouTube told him that "your copyright dispute is currently being reviewed by the copyright owner," to which Dan Bull rightly pointed out that's bullshit, because it's not "the copyright holder" who is reviewing it.

A day later, someone else pointed me to a nearly identical situation with another super popular YouTube musician, The Fat Rat. A third party claimed copyright on his song and YouTube rejected The Fat Rat's dispute.

And, then, soon after that, he posts a similar frustration to Dan Bull when YouTube incorrectly tells him that this is in the hands of "the content owner," when that's not whose hands its in at all:

That's just two examples of YouTube's $100 million upload filter system claiming copyright on music incorrectly that I randomly came across in just the past few days. But it's not hard to find tons of other examples of this happening. Here's someone pointing out that each and every one of his videos is being copyright claimed one after another:

And that seems to happen quite often too. Here's an incredible video from a popular YouTuber explaining in great detail how every single one of his videos had been copyright claimed:

In case you can't watch that, basically the guy legally licensed some music to be used as his outro music (paid the musician $50 for it, as per their request, even though the musician later claims anyone is free to use the music, so long as they include a Spotify link to his stuff). But, then a bunch of companies get involved, including Distrokid and Audiam, who claimed basically every single one of his videos, and his email conversation with both companies is maddening, as they don't seem to understand or care about what's going on -- and basically tell him that every time this happens he would need to email them again and hope they remove the claims, but they refuse to whitelist his account.

And here's another person highlighting that all 3,000+ of his videos just got a ContentID copyright claim:

And here's someone who got a copyright claim on a private, unlisted video that the uploader needed for a class assignment:

Those are just the first few results that pop up for a quick search on Twitter of "Youtube" and "copyright." There are lots more. Indeed, there's an interesting one from the super popular YouTuber @Jack_Septic_Eye (Sean William McLoughlin) who explains that he accidentally caused a ton of bogus copyright claims by switching YouTube networks:

In short, the $100 million ContentID system is a total fucking mess.

Bring that back around to Article 13, which will create massive fines should YouTube fail to catch any copyright-covered works with (per the industry's wishes) no safe harbors for platforms, and this problem will only get significantly worse. Under Article 13, YouTube would be crazy to give anyone even the benefit of the doubt if they receive a copyright claim. Not only that, it would be effectively required to not just block all of these works, but to prevent many of them from ever being uploaded in the first place.

What the various people pushing for Article 13 don't seem to realize is that bogus copyright claims happen all the time. Or there are mixups around content that multiple people license. Or there are multiple middle men making claims on behalf of copyright holders with no knowledge of who has licensed and who has not. Article 13 doesn't take any of that into account. It just says "license everything." Of course, the big labels/studios don't give a fuck if this leads to censorship of you piddly little independents and amateurs. They just want YouTube to hand them a giant check to "license" their entire catalog. That's the real endgame here. That it would block out independents and amateurs (i.e., competitors) is just icing on the cake. And, of course, it ignores that if YouTube spent $100 million on this system and it already has so many problems, just imagine how poorly everyone else's mandatory filters will work.

Article 13 is a horrible solution to a "problem" that doesn't even exist. The fact that YouTube's $100 million ContentID system is so full of bogus claims shows just one of the many problems with filters -- and making them mandatory won't suddenly make YouTube pay. The whole thing is just designed to be leverage. The labels and studios want to use Article 13 as a weapon against YouTube, basically saying "give us all your money in a giant license or we'll sue you over and over and over again." And, of course, should they actually get that, the money is unlikely to make its way back to any of the actual artists.

Europe is doing a big thing badly, and Article 13 is an unmitigated disaster.

Filed Under: article 13, copyright, eu copyright directive, filter errors, filters, takedowns
Companies: youtube

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

from the maybe-dump-article-13 dept

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

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

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

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

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

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

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

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

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

TV, Sports & Movie Companies Still Freaking Out That EU Copyright Directive Might Include A Safe Harbor For Internet Platforms

from the fine,-just-drop-Article-13 dept

Last week, as the last round of "trilogue" negotiations were getting underway in the EU on the EU Copyright Directive, we noted a strange thing. While tech companies and public interest groups have been speaking out loudly against Article 13, a strange "ally" also started complaining about it: a bunch of TV, movie and sports organizations started complaining that Article 13 was a bad idea. But... for very different reasons. Their concerns were that regulators had actually finally begun to understand the ridiculousness of Article 13 and had been trying to add in some "safe harbors" into the law. Specifically, the safe harbors would make it clear that if platforms followed certain specific steps to try to stop infringing works from their platform, they would avoid liability. But, according to these organizations, safe harbors of any kind are a non-starter.

Those same groups are back with a new letter that's even more unhinged and more explicit about this. The real issue is that they recently got a ruling out of a German court that basically said platforms are already liable for any infringement, and they're now afraid that Article 13 will "soften" that ruling by enabling safe harbors.

In a letter of 1 December we alerted the three EU institutions that the texts under discussion would undermine current case law of the Court of Justice of the European Union (CJEU) which already makes it clear that online content sharing service providers (OCSSPs) communicate to the public and are not eligible for the liability privilege of Article 14 E-Commerce Directive (ECD). The proposal would further muddy the waters of jurisprudence in this area in light of the pending German Federal Court of Justice (Bundesgerichtshof) referral to the CJEU in a case involving YouTube/Google and certain rightholders, addressing this very issue. 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. Unfortunately, the Value Gap provision has mutated in such a way that it now creates a new liability privilege for big platforms and therefore even further strengthens the role of OCSSPs to the direct detriment of rightholders.

First of all, it is complete and utter bullshit to claim that Article 13 was "to codify existing case law." Article 13 was designed to create an entirely brand new liability regime that deliberately sought to avoid Article 14 of the E-Commerce Directive (ECD). The ECD functions somewhat akin to the DMCA's safe harbors in the US, in that they include intermediary liability protections for sites that comply with takedown notices in a reasonable manner. The entire point of Article 13 in the EU Copyright Directive was to take copyright out of the E-Commerce Directive and to remove those safe harbors. To claim otherwise is laughable.

It is, of course, hilarious that these companies are now pretending that just because they got a good ruling in their favor on this point, that they're suddenly freaking out that any safe harbor might exist for internet platforms, but here they're explicit about how against a safe harbor they are:

Last week, we proposed a balanced and sound compromise solution consisting in guidance on the issue of OCSSP liability with reference to the existing jurisprudence of the CJEU. This solution would ensure rightholder collaboration in furtherance of the deployment of appropriate and proportionate measures as well as addressing the potential liability of uploaders where the platform has concluded a license, without the creation of any new safe harbours for big platforms. We continue to believe that this reasonable approach would have broad support, including in the rightholders community and could at the same time conciliate different views of Member States and different political groups in the European Parliament, without the need to give powerful active platforms the gift of a new liability privilege which goes beyond the stated intent of the proposed copyright reform. We also indicated that if, on the contrary, any new safe harbour/”mitigation of liability” would be part of a final trilogue agreement, we want to be excluded from the entire value gap provision.

It's also hilarious that they refer to this as "the value gap provision." The "value gap" is a made up concept by some legacy copyright companies to complain that their business models aren't as all powerful as they used to be, and therefore the government must step in to force other companies to give them money.

Also note the messaging here: they don't talk about what would be best for the public. Just for "the rightsholder community."

Anyway, if they want to be "excluded" from Article 13 entirely, I think that's fine. The best solution here is the obvious one: the EU can drop Article 13 entirely.

Filed Under: article 13, copyright, eu, eu copyright directive, intermediary liability, safe harbor
Companies: mpa, premier league

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