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

Latest EU Copyright Proposal: Block Everything, Never Make Mistakes, But Don't Use Upload Filters

from the and-a-pony dept

As we've been discussing the "Trilogue" negotiations between the EU Commission, EU Council and EU Parliament over the EU's Copyright Directive have continued, and a summary has been released on the latest plans for Article 13, which is the provision that will make upload filters mandatory, while (and this is the fun part) insisting that it doesn't make upload filters mandatory. Then, to make things even more fun, another document on the actual text suggests the way to deal with this is to create a better euphemism for filters.

When we last checked in on this, we noted that the legacy film and television industry associations were freaking out that Article 13 might include some safe harbors for internet platforms, and were asking the negotiators to either drop those protections for platforms, or to leave them out of Article 13 altogether and only have it apply to music.

The latest brief description of the recommendations for Article 13 appear to be an attempt by bureaucrats who have no understanding of the nuances of this issue to appease both the legacy copyright industries and the tech companies. Notably absent: any concern for the public or independent creators. We'll dig in in a moment, but frankly, given the state of Article 13 demonstrated in this two-page document, it is horrific that these discussions are considered almost concluded. It is obvious that the vast majority of people working on this have no idea what they're talking about, and are pushing incredibly vague rules without any understanding of their impact. And rather than taking in the criticism and warning from knowledgeable experts, they're just adding in duct-taped "but this won't do x" for every complaint where people warn what the actual impact of the rules will be for the internet.

That's why, throughout this document, they keep insisting that there will be no mandate for filters. But, there's no way you can actually avoid liability without filters. Indeed, in order to appease the film and TV folks, the proposal now includes a notice-and-staydown provision. We've spent years explaining why a notice-and-staydown provision is not only unworkable, but would lead to tremendous amounts of non-infringing content being removed. Copyright is extremely context specific. The exact same content may be infringing in one instance, but protected in another. Yet a notice-and-staydown does not allow the protected versions. It requires they be blocked. That is outright censorship.

On to the document. It starts with seven "guidelines."

The Commission was requested to follow these guidelines indicated by the Rapporteur:

• Platforms should follow high standards of duty of care;
• Cooperation should not be unidirectional;
• Non infringing content should remain on the platform online;
• Automatic blocking, albeit non forbidden, should be avoided as much as possible
• Existing measures should not be excluded
• Platforms should not always be released from liability by merely applying content identification measures
• Rightholders should not be in a worse position than they are currently. In this context the audiovisual sector was singled out. On this basis, the following ideas, which are based on a logical grouping of the above guidelines, are outlined for the consideration of the co-legislators:

This can be summed up as... all infringing content must disappear, but you don't have to use filters and you must make sure that non-infringing content remains online. This is the "nerd harder" approach to regulating. It is magic wand regulating: make the bad stuff go away, and magically don't have any collateral damage.

This is not sound policy making. This is technically illiterate bureaucrats trying to cover their asses. Because the liability requirements in the document will certainly lead to massive overblocking and widespread unintended consequences, these spineless technocrats are trying to avoid that by just tacking on "but let those consequences happen." They don't explain how this is possible. They just are going to put these rules out into the world, and tell the tech industry to wave a magic wand and make one type of content disappear without impacting other content (even if they're impossible to distinguish, and if the penalties for getting it wrong are dire).

From there, the document provides "details" never apparently recognizing just how contradictory the plans are:

High standard of duty of care and bilateral cooperation (1 + 2) Online content sharing service providers, as defined in the directive, are considered to communicate to the public and as such need to obtain licences from the relevant rightholders. Where no licences are granted, online content sharing service providers and rightholders should cooperate in good faith to prevent the availability of protected content online.

Cooperation should take place according to appropriate standards of professional diligence, which ought to take into account the size of the service, the number and type of works or other subject matter uploaded by users, the potential economic harm caused to rightholders, the availability of suitable and effective technologies and their cost for service providers. In practice, this means that the standards of cooperation should be particularly high for high value content. Cooperation should not lead to a general monitoring obligation as defined under the e-Commerce Directive.

Magic wand thinking: Either your entire platform needs to be licensed (i.e., no user-generated content) or you need to "prevent the availability" of any copyright-covered content with "good faith." But how? Well, the bureaucrats insist that this shouldn't require "general monitoring" (i.e., an upload filter). But... um... how do you prevent availability of copyright covered content if you're not monitoring? This is an impossible situation and either the bureaucrats know this and are just ignoring that they're demanding the impossible, or they don't understand this and shouldn't be allowed within 10 miles of any regulation over the internet.

Rightholders should provide content sharing service providers with specific information (e.g. metadata) allowing identification of their content.

The cooperation could include content identification measures (e.g. for high value content) but should not prevent other forms of cooperation if agreed by the parties (e.g. ex post content moderation for low value content, see also letter B).

When unauthorised content becomes available on their websites, content sharing service providers would in general not be liable if they have cooperated in good faith according to the relevant standards of professional diligence. However, within an adequate framework to ensure legal certainty, when despite such cooperation the availability of content online has caused significant economic harm to rightholders the Directive could consider the provider liable in any event, but at a reduced level taking into account the good faith of the provider. Alternatively, the Directive could allow rightholders to claim restitution of the benefits appropriated by the providers (e.g. using unjust enrichment claims under national law) (see point C below).

So, again, we see the general incomprehensibility of what is being pushed here. The first paragraph is an attempt to appease the platforms, basically saying "if copyright holders are going to demand takedowns, they should at least be required to supply the details of what content they actually hold a copyright over." That's reasonable given a plan to demand mandatory filters, because the only thing such metadata is actually useful for is... a filter.

The second paragraph is basically saying "okay, yes, we mean filters for loosely defined 'high value' content, but maybe loosely defined 'low value content' doesn't require filters." Again, this appears to be an attempt to split the baby. Who the hell is going to self-describe their own content as "low value content?" The whole concept of "high value" and "low value" is elitist claptrap from the legacy content industries who basically believe that anything that comes from the legacy recording, TV and film studios is "high value" and all that independent, amateur, and user-generated content is "low value." The paragraph here is supposed to be an attempt to say "well, okay, if your platform is just publishing garbage memes and stuff maybe it doesn't need a filter, but if you happen to include any of Hollywood's precious brilliance, you must put in place a filter."

The third paragraph is, yet again, an attempt to give special extra rights to the legacy recording, TV, and film companies. It basically says that if platforms try to "cooperate in good faith" (i.e., censor at the drop of a hat) then maybe they would be considered not liable... but only if it's that riff-raff low value content that slips through the filters (though we're not demanding filters!). If any content slips through the filters that "caused significant economic harm" (i.e., comes from the big copyright industries), well then, it doesn't fucking matter how much you tried to stop it, you're still liable.

In other words, if any internet platform makes a single mistake with Hollywood's content, no matter how hard they tried to stop it, too bad, you're liable.

And this is where there's such a massive disconnect between the framers (and supporters) of Article 13 and reality. When you're told that any mistake will lead to liability, you are put in a position of trying to prevent any mistakes. And the only ways to do that are to (1) stop accepting any user-uploaded content or (2) filter the hell out of all of it, and take down anything that even might possibly be considered infringing, meaning tons of perfectly legitimate content will get shut down.

No matter how many times these technocrats say "don't take down non-infringing works", it's totally meaningless if the only way to avoid liability is to take down tons of non-infringing works. Which brings us to the next part:

Non infringing content should remain online and automatic blocking to be avoided as much as possible (3+4)

Content that does not infringe copyright, for example because it is covered by exceptions, should stay on the services’ websites. In addition, the co-legislators could provide that minor uses of content by amateur uploaders should not be automatically blocked (in the context of the cooperation and professional diligence referred to under A) nor trigger the liability of the uploader. This should be without prejudice to the remedies under point C and the rules on liability of the providers and cooperation under A.

The need to allow legitimate content to remain available, should be strengthened through a robust redress mechanism which should ensure that users can contest measures taken against their legitimate uploads. The Commission already provided possible suggestions to the co-legislators which are currently under discussions in the trilogue process.

Again, this is setting up a laughable impossibility. First they say you're liable if you let anything through, and then they say "but don't accidentally take down stuff you shouldn't." How the hell do you do that? The rules don't say. Hollywood and Article 13's supporters don't care. It's great if they add a "redress mechanism" for bogus takedowns, but that only will apply to content that first gets up and then is taken down. It says nothing for content that is blocked from being uploaded in the first place due to overaggressive filters, which are only overaggressive due to the earlier parts of Article 13 that say you're liable if you let anything "high value" through.

This is the ultimate in cowardice from the EU regulators. Rather than address the actual problems that their own regulations will create, these regulators have decided to just append a bit to their regulation that says "and don't let this create the problems it will obviously create." That's fucking useless.

Rightholders should keep benefiting from existing measures; and platforms not released from liability by merely applying content identification technologies. Rightholders, notably audiovisual sector, not worse off (5+6+7)

Rightholders should in any event retain the ability to request removal of infringing content from the websites of the content sharing services. Building on and complementing the current ecommerce rules, rightholders should be allowed to request that unauthorised content is expeditiously removed and that best efforts are made to ensure that it stays down. As indicated in A, the co-legislators may provide for an additional safeguard for rightholders when despite the good faith cooperation the availability of content online causes significant economic harm to them.

There's something really big hidden in here. A "notice and stay down" requirement. That was not what was being pushed before. Notice and staydown creates all sorts of problems, in that by its very nature it obliterates the points in the previous paragraph. If you have a notice and staydown regime, you cannot allow content that is "covered by exceptions" because you've already designated all such content must stay down. And unless these bureaucrats in Brussels have magically invented a filter that can understand context and correctly judge whether or not something is covered by an exception (something that normally takes a years-long adversarial judicial process) it is difficult to see how this is possible.

Then we get to the other document, leaked earlier today by Politico, that attempts to wordsmith the actual language of Article 13. It's basically the same stuff we discussed above, but with an attempt to put it into actual legalese. Two things stand out in the document. First, they try to rebrand mandatory upload filters, by now discussing "suitable and effective technologies" to "ensure the non-availability on the websites of the service providers of unauthorised works or other subject matter..." How is that not a filter?

This document also includes some language "as an option" that would require "best effort to prevent their future availability." That's putting the notice-and-staydown into the law. I will note that there is no real language being discussed that explains how to prevent the blocking of non-infringing works. Just more hand waving and magical thinking about how it shouldn't block non-infringing works... even though it absolutely will.

This leaves me with two key takeaways:

1. The bureaucrats putting this together are doing the worst kind of regulating. They appear to be utterly ignorant of what it is that they are regulating, how it works, and the inevitable impact of their new rules. And, rather than trying to take the time to actually understand the concerns, they are simply writing "but don't do that" into the law every time someone explains the impact. But you can't regulate internet platforms not to overblock when everything else in your law requires them to overblock or face crippling liability. This is like a law that says "you must immediately dump out the bathwater without looking to see what's in the bath... but don't throw out the baby with the bathwater." How do you do that? The law doesn't say because the regulators don't have the slightest clue. And they don't have the slightest clue because it's impossible. And, they don't seem to care about that because once they pass the law they can celebrate and the mess they create is left for the internet platforms (and the public) to deal with.
2. Given the massive changes and broad and unclear mandates being tossed around, Article 13 is nowhere near a condition which should be put into a binding regulation. What's being debated now is so unclear, so vague and such a mess, that it would be practically criminal to put such nonsense into law. They are rushing to get this done (perhaps before the next EU Parliamentary elections next spring), and the fact that they're about to make massive changes to a fundamental part of society (the internet) without clearly comprehending what they're doing is incredibly frightening. This is like a bad first draft of a bad proposal. This is not just "this is a bad bill that went through a comprehensive process and I disagree with it." This is an utter mess. It keeps shifting, it has vague and contradictory definitions, it tells companies to wave magic wands, and tells companies not to let the very thing the law compels actually happen. This is not regulating. This is why the public hates regulators.

I'm still hopeful that common sense eventually shows up in the EU, but at this point the only way for common sense to survive is to simply dump Article 13 entirely.

Filed Under: article 13, copyright, eu, eu copyright directive, intermediary liability, liability, notice and staydown, upload filters

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why Europe Will Never Build Its Own Digital Giants

from the getting-it-all-wrong dept

A few years back, I was asked to create a presentation for a few visiting European executives, to explain "what makes Silicon Valley, Silicon Valley." It was a fun presentation, and one of the people who saw it later had me give it to an ever rotating crew of visiting European execs and policymakers (I even got to give the talk once over in the UK). I believe I did the presentation half a dozen times or so. The person who set up most of those talks later moved on to another job and it's been years since I last gave the presentation. It always led to an interesting discussion, though, because so much of what I talked about seemed to go against their core instincts about innovation (the presentation also debunks some of the common myths about the success of Silicon Valley). Maybe, one day, I'll get to give the talk again.

However, what fascinated me most was the general resistance to understanding the fundamentals of both innovation and the internet. But in the past few years, it's become increasingly clear that the EU's concept of the internet is almost entirely out of sync with how digital innovation works, especially with the ways in which the EU has gone about regulating the internet -- from the GDPR to the Copyright Directive, to the antitrust efforts, to the Terrorism regulation.

The Economist recently explored this issue, suggesting that Europe will never produce its own Google. While there are a few European tech success firms, they're still greatly limited and there are a lot fewer of them than elsewhere:

London, a global tech hub, is home to DeepMind, a leading artificial intelligence (AI) outfit; Stockholm is home to Spotify, a dominant music-sharing service; Cambridge-based Arm makes processor chips for almost all the world’s smartphones.

Yet still Europe lacks large firms in areas like social media, e-commerce and cloud computing comparable in scale to America’s Google and Microsoft, or China’s Alibaba and Baidu. Of the world’s 15 largest digital firms, all are American or Chinese. Of the top 200, eight are European. Such firms matter. They operate dominant online platforms and are writing the rules of the new economy in the way Cockerill’s innovations did in his day.

Unfortunately, rather than focusing on the constant regulatory attacks by EU policymakers on the key elements of innovation in the digital age, the Economist article falls back on the same old excuse we've heard from Europeans for years and years: the country has too many different languages and a complex set of different laws in each country:

Today, however, Europe’s patchwork is a disadvantage. New technologies require vast lakes of data, skilled labour and capital. Despite the EU’s single market, in Europe these often remain in national ponds. Language divides get in the way. Vast, speculative long-term capital investments that make firms like Uber possible are too rarely available on European national markets. True, there is progress. European universities are working more closely together, and in 2015 the EU adopted a new digital strategy that has simplified tax rules, ended roaming charges and removed barriers to cross-border online content sales. But about half of its measures—like smoother flows of data—remain mere proposals.

And while I'm sure there's some truth to that stifling some aspect of European success, it doesn't stand up to much scrutiny. After all, most of the giant American internet firms have figured out how to work in those vastly different European markets, despite not even being headquartered there. So clearly it can be done.

The larger problem, it seems has much more to do with the general distrust for disruptive innovations. The European approach, consistently, appears to favor slowing (or stopping) innovation unless all possible "harms" are minimized, even if this comes at the expense of the benefits. There are arguments to be made for this approach -- preventing harm is a laudable goal. But it leaves out the other side of the equation: it kills off massive amounts of benefits. This is not to say that the general approach should be a free for all, or that potential harms should be ignored. Nor is it to say that we should be purely utilitarian and weigh the two sides. But, an innovative approach that enables experimentation and learning, and a focus on providing much more benefits for the public seems to be much more effective at creating incredibly valuable services.

There is, of course, much more involved in building out a successful innovation ecosystem that builds hugely powerful services, but the EU seems to have little to no interest in actually figuring out how it can work.

Filed Under: eu copyright directive, europe, gdpr, innovation, silicon valley

Not Even Hiding It Any More: EU Council Explicitly Pushing For Mandatory Upload Filters

from the filter-this dept

One of the key talking points for supporters of Article 13 in the EU Copyright Directive is to absolutely deny that it requires mandatory upload filters. Of course, as soon as you ask them how an internet platform could possibly abide by the rules of Article 13 without implementing mandatory upload filters, they suddenly change the conversation. Usually to something about how YouTube is ripping off all musicians. This is... weird. First of all, YouTube already has its giant upload filter in the form of ContentID. Second, if they can't tell you how it doesn't require upload filters, then... it requires upload filters.

As the trilogue negotiations continue between the EU Council, the EU Commission and the EU Parliament, the Council has apparently decided to drop the pretense and is now explicitly demanding mandatory upload filters. The newly proposed language says that any site is liable for all infringement committed by their users unless they block any infringing works they've been informed about from ever appearing on their sites again. It's a "notice and stay down" requirement -- which has all sorts of problems. First of all, this assumes that every use of the same work is equally infringing. It does not take into account that one use may be infringing, while another may be fair use or fair dealing. Second, it requires incredibly expensive technology. ContentID already cost Google over $100 million... and it's not very good. Tons of stuff still gets through. So now, basically, any successful smaller platform would have to spend ridiculous sums of money to implement a useless filter that won't work... and when things slip through, they're still liable for massive damages.

And, notice what's missing? What happens if these filters take down content they should not? This happens all the time. But here, of course, there is no punishment for false notifications or for mistakes. While the Council tries to get around this by saying the rules "shall not affect legitimate uses, such as uses under exceptions and limitations," that's entirely meaningless. How the hell do you train a filter to understand parody? Or fair use? Or any other limitation or exception? Google has spent $100 million on its system and it has no clue how to determine fair use.

The link above to Julia Reda's site has more info on the current state of the negotiations, but suffice it to say that this still appears to be an utter disaster for the internet, as you have people who have no understanding at all how the internet works, passing sweeping regulations that will have massive consequences for speech online.

Filed Under: article 13, contentid, eu, eu copyright directive, upload filters

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

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

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

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

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

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

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

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

from the shameful dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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