France, As Promised, Is First Out Of The Gate With Its Awful Copyright Directive Law: Ignores Requirements For User Protections

from the what-a-mess dept

France was the most vocal supporter of the EU Copyright Directive's upload filters provisions (originally known as Article 13, but Article 17 in the final version). Despite promises that the law wouldn't require a filter, right after the Directive passed (which only happened after the French negotiators strong-armed Germany into a questionable deal), French officials promised that it would be be first in line to "transpose" Article 17 into a new law.

While it wasn't quite as quick as they initially promised (there was talk of having it ready last summer), France has now proposed to put Article 17 into law in that country and it's just about as bad as you could possibly imagine. Indeed, the law appears to simply ignore wholesale the already weak requirements that were put into Article 17, promising that the laws would protect user rights. That's not what France was pushing for it. Instead, it was all in on the copyright maximalism, so user rights -- the rights of the public -- can apparently be ignored.

... the audacity with which the proposed French law ignores the safeguards included in the EU copyright directive to protect user rights should be baffling even to the most cynical commentator.

As former MEP Julia Reda notes, the whole thing, top to bottom is pretty crazy, and shows how France thinks about copyright law as a method for enriching the entertainment industry, rather than as a tool to benefit the public:

The new draft law on “audiovisual communication and cultural sovereignty in the digital age” covers a number of different subjects aside from copyright law, including the protection of minors and the regulation of video streaming platforms like Netflix. The title of the proposed law gives a glimpse into the mindset of French legislators, presenting the enforcement of copyright laws in the interest of private entertainment companies as a matter of asserting France’s “cultural sovereignty”. It frames Article 17 as a means to support the European entertainment industry in its conflicts with American tech companies. Users’ interests are at best an afterthought in this struggle for “cultural sovereignty”.

It will comes as no surprise -- even as it is troubling -- the French proposal will create massive problems for smaller internet sites should they wish to host any sort of user-generated content:

Despite assertions by supporters of Article 17 that the law is aimed at huge social media companies like YouTube and Facebook, the French proposal still tries to extend the new obligations to as many platforms as possible. The definition included in section 1 of the proposal is mostly identical to the definition included in the EU copyright directive, which has been criticized for being exceedingly vague. No effort is made to narrow down what is meant by unclear terms from the directive such as “large amounts” of copyrighted content uploaded to a platform. Instead, the French law provides that a decree should define what is considered a large amount.

There is, however, one important change: The definition does not just include platforms that profit directly from user uploads of copyrighted content, but also those that do so indirectly. That could include platforms whose business model is not based on giving access to user uploads of copyrighted content (for example by placing advertisements next to that content), but who nevertheless allow such uploads. One example could be the dating app Tinder, which is based on a freemium business model, where users can pay for extra functionality which gives their dating profiles greater visibility. These profits are clearly not directly derived from giving users access to copyright-protected content, yet without the possibility to upload copyrighted content (pictures), the app clearly would not function, so it could be argued that it derives its profits indirectly from organizing the uploaded pictures.

That bit above is notable because when Julia and others (including us here at Techdirt) raised concerns about how the law might apply to sites like Tinder or others where the content was secondary, we were told that would never happen and the law would clearly not cover such sites. Yet, here we are, and (shocker) the promises we were told turned out to be lies.

Perhaps most incredible is that throughout the negotiations, MEPs tried to put in very weak safeguards here and there to make sure that the worst of what protesters were claiming would be limited. But France just decided to ignore a lot of that and push for what it wanted in the original Directive anyway:

It seems that the French government cherry-picks from the recitals, ignoring the guidance that is supposed to narrow down the definition and only including the parts that widen it. For example, the clarification from the recitals that Article 17 should only apply to platforms that compete with licensed content streaming services for the same audiences (which would clearly exclude platforms like Tinder) is completely missing from the French law.

Also, the French version of the law will require upload filters -- breaking another promise made by supporters of the Directive. Indeed, Reda notes that Germany had promised to work with the other EU states to make sure implementation would not require filters. France's response, apparently, was the French equivalent of "nope."

The French draft law clarifies that rightsholders should be completely free in deciding whether to give a license to a platform, shutting down any efforts such as those discussed in Germany to avoid upload filters by introducing some kind of mandatory licensing solution. Whenever a rightsholder decides not to offer a platform a license, it will therefore have to use upload filters. This is particularly interesting given that the German government announced that it would try to cooperate with other European countries to try to find a solution that doesn’t rely on upload filters. France, one of the largest EU Member States, is clearly not interested in such a solution.

As for the near total lack of user rights in the French transposition proposal, Reda notes that it does have a section entitled "User Rights," but after those two words, it's all downhill:

The only part of this section that’s faithful to the directive is the title. Remember when the European Commission claimed that your memes will be safe? Memes would not be deleted, the Commission argued, because Article 17 makes the exceptions for parody, caricature, pastiche and quotation mandatory and clarifies that Member States have to make sure that users can benefit from these exceptions in practice. It also states that platforms cannot be forced to generally monitor all user uploads (which is necessary for any upload filter) and that legal uploads must not be deleted as a consequence of implementing Article 17.

Well, France “forgot” to mention all of that in its national proposal. The copyright exceptions under French law stay completely unchanged, although they are notoriously patchy and do not cover all situations that may arise on online platforms, such as quoting from a video. France also completely fails to ensure that users can benefit from these exceptions in practice when they upload something to a platform. Instead of ensuring that platforms do not override existing copyright exceptions in their terms and conditions, as the directive requires, the French proposal simply asks platforms to inform users about the existence of copyright exceptions under national law. The decisive parts of Article 17, which state that platforms must allow users to actually benefit from these exceptions, and that such legal content must not be blocked in the first place, are completely missing.

It’s clear from the creatively named “user rights” section of the draft law that copyrighted content gets blocked by default and users can only benefit from copyright exceptions if they complain after their content has already been blocked. Of course, getting your reaction gif or live stream unblocked a couple of days after the fact is completely useless, which explains why very few users ever make use of such complaint mechanisms where they exist. Under the French proposal, platforms have to offer a mechanism to deal with user complaints about blocked content (so the procedure is clearly “block first, ask questions later”).

Oh, and it gets worse. The French proposal makes it even easier for those claiming to be copyright holders to use the law to censor content, ignoring what little protections were baked into the EU Directive:

Rightsholders, unlike what the directive says, do not have to justify their initial requests to block content, but only have to respond once a user challenges the blocking of one of their uploads. During this dispute resolution, the content stays blocked. This opens the door to copyfraud, where companies falsely claim to hold rights in other people’s creations, and the original author has to complain to have their own work unblocked. Although the directive says that all decisions by a platform to block content must be subject to human review, the French proposal only requires this in cases where a user complains after their content has already been blocked. Outrageous mistakes by fully automated upload filters are likely to become a lot more common under this proposal.

To add insult to injury, when users or rightsholders want to complain about the result of the redress mechanism offered by the platform, they are supposed to turn to a new regulator called ARCOM, which is the direct successor of HADOPI, the organization best known for administering the infamous “three strikes” rule, which could block users from accessing the Internet if they repeatedly violated copyright law. This is hardly a regulator that is known for impartially weighing the competing interests of users and rightsholders.

The French proposal still needs to be voted on, though it appears to have pretty widespread support among French officials. Once it does become law, it will almost certainly be challenged in some form or another with cases that eventually make their way to the EU Court of Justice, which will be in charge of determining if the law meets the standards of the EU Copyright Directive. But that could take years, and CJEU rulings may be more narrowly focused as well. In short, France can do a lot of damage in the meantime.

Of course, what's most insane is that most of this damage will be to its own citizens and its own creative community who will now be greatly limited by this ridiculous law.

Filed Under: article 13, article 17, copyright, eu, eu copyright directive, filters, france, upload filters, user rights

The Fate Of EU Legislation Designed To Bolster Data Protection Beyond The GDPR, The ePrivacy Regulation, Hangs In The Balance

from the lobbying?-what-lobbying? dept

Whatever your views on the EU's General Data Protection Regulation (GDPR), there is no denying the impact it has had on privacy around the world. Where the GDPR deals with personal data stored "at rest", the proposed ePrivacy Regulation deals with with personal data "in motion" -- that is, how it is gathered and flows across networks. As Techdirt discussed two years ago, the pushback from Internet companies and the advertising industry against increased consumer protection in this area has been unprecedented. Some details were provided at the time in a report from the Corporate Europe Observatory. Unfortunately, that massive lobbying has paid off. Good ideas in the draft text produced by the European Parliament, like banning encryption backdoors or "cookie walls", have been dropped, as has the right of Internet users to refuse to accept tracking cookies. In the most recent version of the text (pdf) put together under the Austrian Presidency of the Council of the European Union (one of the three EU institutions that has to agree on the final law), there's even a new bad idea:

In some cases the use of processing and storage capabilities of terminal equipment and the collection of information from end-users' terminal equipment may also be necessary for providing an information society service, requested by the end-user, such as services provided to safeguard freedom of expression and information including for journalistic purposes, such as online newspaper or other press publications...that is wholly or mainly financed by advertising provided that, in addition, the end-user has been provided with clear, precise and user-friendly information about the purposes of cookies or similar techniques and has accepted such use

This section would give the news publishing industry a special right, enshrined in the ePrivacy Regulation, to use tracking cookies to support advertising, even though the original impetus behind the new law was to stop precisely this kind of obligatory commercial surveillance. Following its lobbyists' success in obtaining a special link tax included in the awful EU Copyright Directive, this latest legal privilege is further testament to the power of the publishing industry in the EU.

Judging by the most recent draft text, the ePrivacy Regulation has been almost completely gutted of any strong protections for Internet users. And yet it seems even what little remains is too much for some EU member states, as a story on Euractiv reports:

The European Commission will present a revised ePrivacy proposal as part of the forthcoming Croatian Presidency of the EU, Internal Market Commissioner Thierry Breton announced on Tuesday (3 December), after previous talks failed to produce an agreement among member states.

The revamped measures will be made in a bid to find consensus between EU countries on the ePrivacy regulation which would see tech companies offering messaging and email services subjected to the same privacy rules as telecommunications providers.

Although the new Internal Market Commissioner Breton is quoted as saying: "You can count on me to find consensus between each of us", others are not so sure. Some now believe that the entire ePrivacy Regulation will be dropped as being too hard to fix. That would be an incredible waste of years of work, a missed opportunity -- and a huge victory for the lobbyists.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: eprivacy regulation, eu, lobbying, privacy

EU Tells US: Ban Strong Encryption, And Privacy Shield Data Sharing Agreement Could Be At Risk

from the question-of-adequacy dept

As a recent post underlines, law enforcement agencies around the world are still trying to argue that things are "going dark", and that strong encryption is bad and should be made illegal. Techdirt and many others have pointed out what an extremely stupid idea this would be. Here's a further reason why the US shouldn't ban strong encryption: it might lead to the EU making data transfers across the Atlantic much harder. The possibility has emerged thanks to some formal questions to the European Commission (pdf) submitted by a Member of the European Parliament, Moritz Körner. They include the following:

According to the news website Politico, the US government is considering a ban on encryption.

1. Would the Commission consider a similar ban in the EU to be useful?

2. Would a ban on encryption in the USA render data transfers to the US illegal in light of the requirement of the EU GDPR for built-in data protection?

The answers from the European Commission have now been published (pdf). The first response is as follows:

Encryption is one of the means of protecting confidentiality as well as privacy and is widely recognised as an essential tool for security and trust in open networks. No ban on encryption is being considered.

That's good, but:

At the same time, the use of encryption should be without prejudice to the powers of competent authorities to protect important public interests in accordance with the procedures, conditions and safeguards set forth by law. In particular, access to communications data by national authorities may be justified in individual cases by the objective of preventing or investigating criminal offences, as long as such measures are necessary, proportionate and respect due process rights.

The boilerplate caveat doesn't say how the EU aims to provide lawful access to communications data when strong encryption is employed, and so doesn't really illuminate EU policy here. By contrast, the response to the second question about the impact a US ban on strong encryption might have does provide new information:

Should the U.S. enact new legislation in this area, the Commission will carefully assess its impact on the adequacy finding for the EU-U.S. Privacy Shield, a framework which the Commission has found to provide a level of data protection that is essentially equivalent to the level of the protection in EU, thus allowing for the transfer of personal data from the EU to participating companies in the U.S. without any further restrictions.

Privacy Shield governs the flow of EU citizens' personal data to the US -- something of vital importance to US Internet companies, and many others. Because of the GDPR's requirements, that flow can only take place if the European Commission issues an "adequacy decision" -- essentially confirming that a country outside the EU offers a sufficient level of data protection. Without adequacy, US companies would be forced to take additional, more onerous measures to guarantee that EU personal data was protected to the level required by the GDPR.

The European Commission's reply indicates that adequacy could be at risk if the US were to ban strong encryption. That's surprising, because the Commission has generally tried to ignore criticisms -- from the European Parliament, for example -- about the level of data protection in the US. This may just be a little saber-rattling on the Commission's part. But it's a useful hint that a US ban would not just be bad for the Internet, but could also turn out to be bad for the US.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: encryption, eu, privacy, privacy shield, us

Facebook Claims Users Sign Up Because They Want To See Personalized Ads, Max Schrems Disagrees -- And Usually Wins These GDPR Arguments

from the time-to-start-planning-for-defeat dept

The privacy activist Max Schrems has been conducting a battle on multiple fronts against Facebook's use of personal data. Last year, Techdirt wrote about one of the skirmishes, which saw the EU's highest court, the Court of Justice of the European Union (CJEU), ruling that Schrems could use the GDPR to litigate in Austria, where he is based, rather than in Ireland, where Facebook has its international headquarters. The latter option would have been prohibitively expensive for Schrems, and would probably have meant he dropped the case.

Schems has now begun his legal action in Austria, before the Vienna Regional Court. According to Schrems, Facebook admitted that it has been collecting and processing data without users' consent since the introduction of the GDPR last year. However, in an interesting move, Facebook has claimed that it is not breaking EU law for the following reason:

According to the GDPR, in addition to consent, there is also the possibility of processing data for the "performance of a contract" (Article 6(1)(b) GDPR). Facebook now claims to have concluded such an "advertising contract" with users who, according to Facebook, have ordered "personalized advertising" when they signed up to the new terms and conditions on May 25, 2018.

Essentially, Facebook is claiming that people join its service because they are simply dying to see all those personalized ads that Facebook wants to show them. To counter that novel claim, Schrem's organization NOYB commissioned a study by the Austrian Gallup Institute, which interviewed a representative sample of 1000 Austrians (original in German - pdf). According to Gallup, only 4% of the sample actually loved the ads, with 6% liking them slightly, 21% indifferent and 69% disliking them or really disliking them. That's only one survey, but it certainly suggests that Facebook is clutching at straws with its new line of arguing. According to NOYB:

Cecilia Álvarez (Privacy Policy Director of Facebook EMEA) was questioned by the Viennese judge yesterday. However, she was unable to answer many of the questions. Facebook's lawyers argued that she lacked the "technical understanding" to answer questions on Facebook's handling of personal data.

As Schrems points out, Facebook would have the court believe that users know exactly what they are committing to when they agree to the service's terms and conditions, and yet: "not even the top Facebook privacy expert can explain exactly what the company does with our data." The hearing before the Viennese court to decide the issue has been adjourned until February, so nothing more will happen until then. But the stakes are high. Schrems comments: "If we succeed, Facebook will have to change its practices to comply with the GDPR and give users real voting rights. That’s our goal."

Moreover, a victory by NOYB on this point, if confirmed by the CJEU, would affect every company operating in the EU that gathers private data from its users, and sells advertising based on the personal details. However much Internet services like Facebook and Google might hate that prospect, they know that it is a real possibility, as proved by Schrems' already impressive track record of winning these kind of GDPR arguments.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: austria, eu, gdpr, max schrems, permission, personalized ads, privacy
Companies: facebook, noyb

Music Collection Org: Revenues Are Booming... And That's Proof Why We Need Even More Draconian Copyright Laws

from the say-what-now? dept

As we showed earlier this year in our latest Sky Is Rising report, revenue in the entertainment industry continues to shoot upwards -- and not because of draconian new anti-piracy laws, but almost entirely because of successful innovations from internet companies that have opened up massive new markets for content creators. You'd think that maybe this would make some copyright system supporters think twice about continuing to push for expansionary copyright policies that are likely to hamstring the very internet services that have provided them this windfall, but that would be expecting self-reflection from an industry famous for blaming everyone else for everything that has ever gone wrong.

Case in point, CISAC, the International Confederation of Societies of Authors and Composers (a sort of mega group of most of the various performance rights collections societies around the globe) recently released its annual report on revenue, showing that things were looking up, up, up for songwriters and composers in getting paid. This report fits well with the annual IFPI report, which covers similar data for recording artists (generally speaking, IFPI covers revenue for recorded music, while CISAC covers revenue stemming from performance rights and songwriting royalties). In all cases, these show pretty massive increases, nearly all of it stemming from growth in internet services:

Royalties from digital sources jumped 29% to €1.64 billion, thanks to rapid global expansion of music and subscription video on-demand (SVOD) services. In the last 5 years, creators’ digital income has nearly tripled, now accounting for 17% of collections compared to 7.5% in 2014.

The increase in major markets’ digital collections - notably the United States, France and Japan - are the biggest drivers of global growth. This growth is helped by new and extended licensing deals between societies and digital platforms, from dedicated content services like Spotify to social media platforms such as Facebook and video on demand platforms such as Netflix and Amazon.

That all sounds pretty great, right? Except... that CISAC execs then made the rounds using this report to... call for more draconian copyright laws that would hamstring the internet and limit future growth.

I only wish I was kidding. CISAC's own press release states:

Jean-Michel Jarre, CISAC President, said: “Digital is our future and revenues to creators are rising fast, but there is a dark side to digital, and it is caused by a fundamental flaw in the legal environment that continues to devalue creators and their works. That is why the European Copyright Directive is so momentous for creators everywhere. The Directive has sent an amazing, positive signal around the world, building a fairer balance between creators and the tech platforms”.

Meanwhile, CISAC's Director General Gadi Oron told press outlets like Music Ally that the report only reinforces why the EU Copyright Directive is so important:

On the first of those, the report includes a section on the European Copyright Directive, which was adopted in April and is now being implemented by the EU’s member states.

“It’s very encouraging to see that the digital income is going up at such a pace, including those territories like Mexico, Sweden and South Korea where digital is now the biggest source of income,” said Oron. “I think that will spread to other markets, and digital will gradually become more important. That’s why it’s so important for us to get the legislation in place to make the most of that.”

But the whole point of the EU Copyright Directive is to make it that much more difficult for services to make use of digital music in any form without negotiating impossible licenses, that are designed to strip the platforms from any ability to innovate or offer unique new services. In other words, as is nearly always the case, these laws are designed to strangle the golden goose. For years we've pointed out that every single time the tech industry comes up with a new service that helps make musicians more money, the industry comes along and whines about how it's not getting 100% of the value creation, and then pushes for laws to demand as such, even as it kills these new services.

It's almost pathological. The industry seems simply unwilling to recognize that getting a slice of a larger pie is a better deal. It wants the entire damn pie, even if it means torching the pie to a crisp and making it inedible. The industry is thriving. And yet it keeps pushing for new laws that it insists it needs because the industry is at risk of being destroyed -- and it doesn't care if this effort actually destroys the industry that is helping them. It's insane that politicians keep rubber stamping these moves.

Filed Under: copyright, eu, eu copyright directive, licensing, music, revenue
Companies: cisac

EU Continues To Muck Up The Internet: Approves Broad Filtering/Censorship Requirements

from the so-this-is-really-bad dept

Yes, it's time for this week's edition of "how is the EU fucking up the internet." Over the summer we wrote about an important case in front of the Court of Justice of the European Union (CJEU), warning that the Advocate General's recommendations would lead to mass filtering and censorship of the internet, seemingly going against existing law and precedent that supports freedom of expression and which says that automated filtering violates human rights. Welp. So much for that.

Glawischnig-Piesczek v. Facebook is really, really bad. If you don't recall, the case dealt with an Austrian politician, Eva Glawischnig-Piesczek, who got really upset for comments on Facebook that called her a "lousy traitor of the people," a "corrupt oaf," and a member of a "fascist party." While one may regret this level of political discourse, it is pretty typical. I mean, that last one is basically a part of Godwin's Law, which shows just how common it is for such an accusation to be thrown around. However, Glawischnig-Piesczek sued Facebook. In the US, thanks to Section 230, Facebook clearly wouldn't be liable for such statements. In Europe, with the much less strict E-commerce Directive, an Austrian court not only found that Facebook must remove such content, but that the block should be global and that "equivalent content" must also be blocked.

As we noted back in June, the Advocate General's thoughts on the case were muddled with technical illiteracy (and even some basic legal confusion). It even suggested that monitoring your own content should wipe out your liability safe harbors (which is totally backwards). And then made a weird comment about how moderation efforts need to be "neutral."

Tragically, rather than fix things, the CJEU decided to just come up with the worst possible outcome. It says that's it's perfectly fine and dandy for EU law and a national court to order any website provider to install filters:

Given that a social network facilitates the swift flow of information stored by the host provider between its different users, there is a genuine risk that information which was held to be illegal is subsequently reproduced and shared by another user of that network.

In those circumstances, in order to ensure that the host provider at issue prevents any further impairment of the interests involved, it is legitimate for the court having jurisdiction to be able to require that host provider to block access to the information stored, the content of which is identical to the content previously declared to be illegal, or to remove that information, irrespective of who requested the storage of that information. In particular, in view of the identical content of the information concerned, the injunction granted for that purpose cannot be regarded as imposing on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31.

That's basically the entire discussion -- which is troubling -- because it doesn't recognize (at all) how bad such filters might be. First of all, for smaller sites, such filters may be prohibitively expensive. Second, such filters are notoriously bad. They provide both false positives and false negatives, and the court doesn't even seem to contemplate how this might lead to overcensorship and/or what to do if the filters actually fail to catch a reposting of the content.

But it gets worse from there. Even if you argue that identical content to that already adjudicated as violating the law shouldn't be hard to filter, how do you deal with "equivalent" content? The CJEU basically says "meh, I'm sure it can be done."

It is apparent from the information set out in the order for reference that, in using the words ‘information with an equivalent meaning’, the referring court intends to refer to information conveying a message the content of which remains essentially unchanged and therefore diverges very little from the content which gave rise to the finding of illegality.

In that regard, it should be made clear that the illegality of the content of information does not in itself stem from the use of certain terms combined in a certain way, but from the fact that the message conveyed by that content is held to be illegal, when, as in the present case, it concerns defamatory statements made against a specific person.

It follows therefore that, in order for an injunction which is intended to bring an end to an illegal act and to prevent it being repeated, in addition to any further impairment of the interests involved, to be capable of achieving those objectives effectively, that injunction must be able to extend to information, the content of which, whilst essentially conveying the same message, is worded slightly differently, because of the words used or their combination, compared with the information whose content was declared to be illegal. Otherwise, as the referring court made clear, the effects of such an injunction could easily be circumvented by the storing of messages which are scarcely different from those which were previously declared to be illegal, which could result in the person concerned having to initiate multiple proceedings in order to bring an end to the conduct of which he is a victim.

Conceptually, you can see how the court would think this. Obviously, it's no good if the court has declared that a certain statement is illegal, and someone tries to get around that with a tiny tweak of a letter or something. But, how the hell are companies supposed to filter for that? Here, the CJEU tries to split the baby by saying that any injunction should spell out what counts as equivalent content:

In light of the foregoing, it is important that the equivalent information referred to in paragraph 41 above contains specific elements which are properly identified in the injunction, such as the name of the person concerned by the infringement determined previously, the circumstances in which that infringement was determined and equivalent content to that which was declared to be illegal. Differences in the wording of that equivalent content, compared with the content which was declared to be illegal, must not, in any event, be such as to require the host provider concerned to carry out an independent assessment of that content.

In those circumstances, an obligation such as the one described in paragraphs 41 and 45 above, on the one hand — in so far as it also extends to information with equivalent content — appears to be sufficiently effective for ensuring that the person targeted by the defamatory statements is protected. On the other hand, that protection is not provided by means of an excessive obligation being imposed on the host provider, in so far as the monitoring of and search for information which it requires are limited to information containing the elements specified in the injunction, and its defamatory content of an equivalent nature does not require the host provider to carry out an independent assessment, since the latter has recourse to automated search tools and technologies.

In other words, it won't be up to the platform to determine what's equivalent (mostly), and it won't have to "generally monitor"... except that it does need to monitor generally for whatever words and phrases might be in the injunction.

Again, all of this is done without even the slightest thought to how that is likely to be abused or (more likely) have tons of false positives and false negatives that could create massive censorship.

Oh, and finally, the court says that such blocking orders can be global:

In order to answer that question, it must be observed that, as is apparent, notably from Article 18(1), Directive 2000/31 does not make provision in that regard for any limitation, including a territorial limitation, on the scope of the measures which Member States are entitled to adopt in accordance with that directive.

Consequently, and also with reference to paragraphs 29 and 30 above, Directive 2000/31 does not preclude those injunction measures from producing effects worldwide.

The only limitation on that is based on what each member state in the EU decides for its own laws implementing the E-Commerce Directive.

As Stanford Law's Daphne Keller explains in this excellent thread, a huge part of the problem here is that the users of Facebook are not represented in court -- so the court only was determining if mandated filters would harm Facebook's rights, and the answer is no. But that ignores that these decisions will impact the rights of basically all of Facebook's users.

Under this ruling, it seems likely that Facebook users in Austria won't even be able to see this article because it mentions the "banned words" that were used to describe the politician -- and those have been declared illegal. That's a key issue here: declaring "words" illegal without context is a huge problem. But if you're talking about filtering, then you're removing even the possibility of exploring the context of the use of the words. That's a problem.

Separately, if you're thinking that it sounds like this ruling conflicts with the big CJEU ruling from last month denying a French attempt to have the Right to be Forgotten apply globally, that's not quite true. The French/Google ruling was more limited in scope, and basically left as an open question whether member states could craft a right to be forgotten law that might apply globally. In this case, it found that Austria's defamation law could.

Either way, this is going to create quite a mess. Once again, it will make it nearly impossible for small internet platforms to feel comfortable in Europe. At any point, a court might order them to filter out certain content, and to also filter "equivalent" content and do so globally. That's absolutely true in Austria, and could also be true based on the specific laws in other countries. That's a recipe for censorship and widespread abuse. It will also make it difficult for smaller internet platforms in the EU to ever become larger internet platforms.

Filed Under: austria, blocking, cjeu, defamation, equivalent content, eu, eva glawischnig-piesczek, filtering, jurisdiction, monitoring
Companies: facebook

Other Big CJEU Case Says Google Must Put Certain Links At The Top Of Search Results

from the must-carry dept

While most of the attention today was focused on the CJEU "right to be forgotten" ruling concerning global censorship, the court actually released another ruling concerning the right to be forgotten, again around disagreement between French regulators and Google. And, as intermediary liability expert Daphne Keller notes, this ruling may turn out to be more interesting in the long run.

This case involved how Google should deal with "sensitive data," when it's a part of a RTBF request. The court does decide that a "notice and takedown" regime makes sense for such sensitive content, which is better than the possible alternative advanced by some: that the law requires Google to pro-actively stop the indexing of such sensitive information (or even to first get consent). The court points out that this wouldn't make any sense at all, given how search engines work:

In practice, it is scarcely conceivable — nor, moreover, does it appear from the documents before the Court — that the operator of a search engine will seek the express consent of data subjects before processing personal data concerning them for the purposes of his referencing activity.

But what really stands out is what appears to be a totally uncalled for random aside by the court towards the end of the ruling:

It must, however, be added that, even if the operator of a search engine were to find that that is not the case because the inclusion of the link in question is strictly necessary for reconciling the data subject’s rights to privacy and protection of personal data with the freedom of information of potentially interested internet users, the operator is in any event required, at the latest on the occasion of the request for de-referencing, to adjust the list of results in such a way that the overall picture it gives the internet user reflects the current legal position, which means in particular that links to web pages containing information on that point must appear in first place on the list.

This seems like it could be a very big deal. It's the court saying that Google is required to make sure that top search results "reflects the current legal position." In other words, if someone was exonerated after being accused of a crime, that must now be the top link. As Keller notes, this is going to have some strange consequences that probably won't be very good:

Having a court come in and tell a search engine what is "required" to be the top search result, tossed off without much detail or thought in a world where getting certain links to certain places on search engines is literally an entire industry, is going to have pretty significant consequences -- nearly all of them I can guarantee you the court did not even begin to think about.

Filed Under: cjeu, cnil, eu, links, must carry, right to be forgotten, rtbf, search engines, search results, seo
Companies: google

European Court Of Justice Rules On Three Big Copyright Cases

from the not-great dept

Last week, the European Court of Justice ruled on three separate cases regarding copyright, and exceptions to copyright. We had covered two of these cases back in the summer of 2017 and we finally have rulings. Two of the rulings are... not good. One is okay. We'll save the best for last.

The first of the cases, the Pelham case, was about whether or not sampling was infringing in Germany. This case actually goes back to the turn of the Millennium. In fact, all the way back in 2012 we wrote about how this (then) 12-year-old case had finally come to an end. If only. It involved a German rapper in the late 90s using 2 whole seconds of a 1977 Kraftwerk song "Metall auf Metall." The question was whether or not such a tiny sample could be infringing. At the heart of the case was the ever-present conflict between copyright and freedom of expression. And here, the court said copyright trumps freedom of expression and creativity, even when it's a tiny 2 second music sample. The only exception is if you somehow distort the sample so that it's not recognizable.

In today’s judgment, the Court states, first of all, that phonogram producers have the exclusive right to authorise or prohibit reproduction in whole or in part of their phonograms. Consequently, the reproduction by a user of a sound sample, even if very short, taken from a phonogram must, in principle, be regarded as a reproduction ‘in part’ of that phonogram so that such a reproduction falls within the exclusive right granted to the phonogram producer.

However, the Court notes that, where a user, in exercising the freedom of the arts, takes a sound sample from a phonogram in order to embody it, in a modified form unrecognisable to the ear in another phonogram, that is not a ‘reproduction’. In that context, the Court underlines that to regard such use of a sound sample taken from a phonogram as a reproduction subject to the authorisation of the phonogram producer would run counter, in particular, to the requirement to strike a fair balance between, on the one hand, the interests of the holders of copyright and related rights in the protection of their intellectual property rights guaranteed by the Charter and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter, which are covered by the freedom of the arts, also enshrined in the Charter, as well as the public interest.

So, all you German musicians out there, make sure to distort your Kraftwerk samples.

The only commentary I'll provide here is that if you're unfamiliar with just how much damage this kind of attitude has done to hip hop in particular, where creative sampling created tons of amazing transformative works before the lawyers jumped in, you really don't know much about how creativity and music works. While I've seen some copyright folks who claim to support musicians cheer about this ruling, it will actually do tremendous damage to the creativity and music -- especially in historically more marginalized communities where sampling is much more readily available, compared to expensive instruments.

Moving on. The second case is really about copyright v. press freedoms. Here a German newspaper published a confidential military report, and the government sought to use copyright to block the publication. While the court recognizes that there might not be a legitimate copyright in this particular document, it does say that freedom of the press cannot be an excuse for making use of a copyright-covered work. That is unfortunate.

In today’s judgment, the Court makes clear that it is for the national court, first of all, to ascertain whether the conditions are satisfied so that military status reports are protected by copyright. Those reports can be protected by copyright only if they are an intellectual creation of their author that reflects the author’s personality and are expressed by free and creative choices made by that author in drafting those reports.

The Court adds that, if those conditions were satisfied and military status reports could therefore be regarded as ‘works’, freedom of information and freedom of the press are not capable of justifying, beyond the exceptions or limitations provided for in the Copyright Directive, a derogation from copyright, in particular, from the author’s exclusive rights of reproduction and of communication to the public.

What this means -- though the court won't come out and say it -- is that copyright is a fine and dandy tool for censoring the press. That's really, really bad.

Finally, there's a similar case that has a marginally better outcome. This case involved reporting on a copyright-covered document. The case involved a politician who was facing some negative press over a manuscript he had allegedly published under a pseudonym years earlier. When it came to light, he claimed that the publisher had altered the meaning of the text. A news organization posted a copy of the original manuscript to show that claim was not accurate. He then sued for copyright infringement. The questions here, similar to the previous case, concerned how freedom of the press intersected with copyright. The court said that various exceptions to copyright law were specific to each member state, so there are no European-wide rules on that (beyond the limits in the law on what user rights are allowed). But, the court does note that if something is covered by a user right (i.e., an exception to copyright law), then they don't need to get authorization to use the work:

In particular, as regards the possibility for the Member States to allow the use of protected works in connection with the reporting of current events (to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible), the Court holds that, in applying such an exception or limitation, the Member States cannot subject the exception or limitation to a requirement for the author’s prior consent.

To me, that seems kind of like copyright 101. The whole point of user rights (what people often call "exceptions and limitations" to copyright) is that those are the cases when the works can be used without permission. So, this is just repeating that basic fact. That's okay, because it would have been worse if things had gone the other way, but other parts of this case are still pretty messy.

All in all, this is not great, as it appears to be cases where the court has made it clear that copyright can be used for censorship of music and the media. That can't lead to good outcomes.

Filed Under: copyright, eu, europe, pelham, sampling