The Stunning Inability Of Canada's Heritage Minister To Answer Questions About His Internet Regulation Bill

from the not-very-reassuring dept

We've written about Bill C-10, the Canadian government's attempt to bring online services under the auspices of the country's broadcast regulator, the CRTC, and the way the story about the bill keeps shifting and the promises about what it supposedly won't do keep being broken.

Now, work on the the bill has been paused after lawmakers from all four parties voted to ask the Department of Justice for a fresh analysis of its legality under the Charter of Rights and Freedoms. They've also asked for the bill's champion, Heritage Minister Steven Guilbeault, and others to come before the committee and discuss its implications. But Guilbeault has consistently demonstrated a total inability to give clear answers (or, sometimes, any answers at all) to questions people raise about their concerns with the bill. This has been made "crystal clear" (a term Guilbeault has wrongly applied to the muddy and vague bill itself) by some of his responses over the past couple of weeks.

First, at the end of April, Guilbeault was pressed for details in an interview on the CBC, with host David Common asking why the exclusion for social media content was removed from the bill and how the Minister can still claim it won't be impacted (you can watch the full interview here). As you can see, his answer — inasmuch as it constitutes an answer — is not very convincing:

Why won't Bill C-10 impact user content on social media? Because they're "not interested" in doing that and it's not the bill's "purpose". Oh and also the bill isn't finished. The fact that an exclusion to specifically prevent regulation of social media was removed is, apparently, irrelevant. The powers granted by the actual text of the bill are, apparently, irrelevant. The idea that regulators would use the regulatory powers given to them by the bill "has no basis in reality". Just trust him.

Not convinced? Well, a few days later in the legislature, Guilbeault was pressed by an opposition Member of Parliament on the free expression implications of the bill, and he gave even less of an answer:

Yes, you saw that — Guilbeault immediately pivoted to the completely unrelated topic of reproductive rights and lobbed accusations of hypocrisy at the questioner. Those accusations might not be entirely baseless, but they are entirely irrelevant to this subject that is of extreme importance to all Canadians, not just those on the opposite side of the political aisle from Guilbeault. The Minister also accused another MP of lying about the bill, and was reprimanded in the House of Commons and pressed to withdraw his statement. The Liberal party would very much like it if people viewed opposition to Bill C-10 as a purely partisan effort coming from disingenuous and dishonest opposition politicians, but nothing could be further from the truth.

But Guilbeault's evasiveness and foundering doesn't stop there. The latest interview (watch the whole thing here), in which he changed his previous story and stated that the bill will enable the regulation of users on platforms like YouTube, might be the worst one yet:

Guilbeault manages to contradict himself in a matter of seconds. After the understandably frustrated interviewer presses him, yet again, on his promises that the bill won't regulate social media users, he emphatically insists "individuals are exempt from this la-" and can't quite make it to the end of the word "law" before cutting himself off to say "or will be, once it's adopted". Then, in the very next sentence, he says that the bill will apply to individuals who "act like broadcasters" then vaguely asserts that such people are somehow completely distinct from "everyday citizens". As we discussed in the previous post, he then goes on to be completely unable to clarify how this line would be drawn. And then, the next day, he backtracked these comments and made more insistent promises that users will not be regulated.

Even Canadians who know very little about the subject of online regulation are noticing how desperate and vague Guilbeault gets every time he's pressed for details, and are unimpressed by his obviously evasive deflections in parliament. Now even MPs from his own party are seeking answers. If the government is going to do what it should and toss out C-10 to start over with a brand new bill, it also needs to find a more capable and trustworthy champion for it.

Filed Under: broadcast, c-10, canada, regulations, steven guilbeault, streaming

A Quick Bite Post Mortem For For Quibi: Hollywood Still Doesn't Get The Internet

from the it-ain't-about-the-content dept

So Quibi, the Hollywood dream of creating a new "professional" video streaming service by throwing $1.75 billion at Jeffrey Katzenberg and Meg Whitman and hoping they could create something, lasted all of 199 days before announcing that it was throwing in the towel (even though it apparently still has a chunk of that cash on hand, which it will be handing back to some investors). As we noted when it launched, Quibi is the perfect example of Hollywood thinking about the internet. It overvalued the content (and believed that you got the best content by throwing money at big names), and completely undervalued the internet and the fact that the killer application of the internet is community and communication.

For decades now, we've pointed out time and time again that Hollywood seems to view the internet through the lens of their existing industry -- one built up with a few giant gatekeepers who "greenlight" what content gets made -- and that the content they pick must be financed with ungodly sums of money. I'm reminded of the former NBC exec who quizzed me years ago about how to make sure his company could keep making $200 million movies. As I've noted repeatedly in the 15 years since I was challenged over that, the whole question is wrong. No one in the tech industry demands that others explain "how do we keep making $5,000 computers." The industry looks at how best to serve customers -- and often looks for creative ways to do it cheaper and more efficiently, rather than just setting a cost and tossing cash into it.

Quibi was the result of this kind of hubris: taking the Hollywood approach to an internet world. And it showed.

As James Surowiecki highlights in his own post-mortem, Quibi is basically the opposite of what a compelling internet service is because it relies on the idea of the brilliant visionary anointing the best content, rather than letting it bubble up via the wisdom of the crowds.

I find it notable that Quibi shut down the week that there was a flood of stories (and TV commercials) featuring Nathan Apodaca, the Idaho potato farmer who's random TikTok video of himself on a skateboarding heading into work (after his truck broke down) while drinking cranberry juice from a giant bottle and singling along to Fleetwood Mac went super viral. It was also a "quick bite" video, but it was basically the anti-Quibi. That one random video going viral has even brought Fleetwood Mac's "Dreams" back onto the charts 43 years after the song came out.

That's the power of the internet. It allows anyone to create. It allows anyone to share. And out of all of that, it allows some amazing content to bubble up, because tons of people like it -- and not because some super rich Hollywood dude decides "this is what the people want."

Filed Under: broadcast, communication, community, content, hollywood, internet, jeffrey katzenberg, meg whitman, sharing, value
Companies: quibi

The End Of The Open Internet: Cory Doctorow's Op-Ed From The Future

from the let's-hope-it-doesn't-come-to-this dept

The NY Times is running an "Op-Eds From the Future" series, which is a creative idea. In a recent one, Cory Doctorow matched the theme perfectly by highlighting what world looks like without an open internet, when companies are forced to monitor and filter everything. The point he's making is that, especially with changing laws in the EU and some of the proposals in the US, the liability for hosting content will become too great, and we'll shift from an internet that is open for communmications to one that is a "broacast" world of carefully vetted and fully "licensed" content. His title makes the premise clear: I Shouldn’t Have to Publish This in The New York Times.

Ten years ago, I could have published this on my personal website, or shared it on one of the big social media platforms. But that was before the United States government decided to regulate both the social media platforms and blogging sites as if they were newspapers, making them legally responsible for the content they published.

The move was spurred on by an unholy and unlikely coalition of media companies crying copyright; national security experts wringing their hands about terrorism; and people who were dismayed that our digital public squares had become infested by fascists, harassers and cybercriminals. Bit by bit, the legal immunity of the platforms was eroded — from the judges who put Facebook on the line for the platform’s inaction during the Provo Uprising to the lawmakers who amended section 230 of the Communications Decency Act in a bid to get Twitter to clean up its Nazi problem.

He goes through the inevitable progression of events in a world without Section 230, in which various countries enact stricter and stricter laws, and the liability burdens become increasingly too great on companies, leading them to ramp up automated filters that don't work very well, and then nothing works right, especially if you're discussing a serious topic:

The platforms and personal websites are fine if you want to talk about sports, relate your kids’ latest escapades or shop. But if you want to write something about how the platforms and government legislation can’t tell the difference between sex trafficking and sex, nudity and pornography, terrorism investigations and terrorism itself or copyright infringement and parody, you’re out of luck. Any one of those keywords will give the filters an incurable case of machine anxiety — but all of them together? Forget it.

And the real kicker, none of that automation solved any of the "issues" that lawmakers insisted they were solving in the first place. And the key point in all of this: in deciding that bad stuff on the internet was the fault of big internet companies, you inevitably lock in those giants:

But instead, we decided to vest the platforms with statelike duties to punish them for their domination. In doing so, we cemented that domination. Only the largest companies can afford the kinds of filters we’ve demanded of them, and that means that any would-be trustbuster who wants to break up the companies and bring them to heel first must unwind the mesh of obligations we’ve ensnared the platforms in and build new, state-based mechanisms to perform those duties.

It's a good, fun, readable vision of the world we're currently heading for based on EU regulations and some of the nonsense being suggested regarding Section 230 today.

The really annoying part is how little those who are pushing these regulations seem to realize what they're doing. Everyone is so focused on Section 230 these days as if it's the only "lever" they have to pull in regards to their complaints (some of which are totally reasonable) about the big internet companies. Very few of them bother to consider how all of this plays out -- which is why it's great that Cory is doing so. Of course, those who don't want to recognize what will happen don't seem to care. I've seen a few people dismissing the story as "fiction," which kind of misses the point. Hilariously, they're doing so on social media platforms enabled by the laws that these people are now trying to kill.

Filed Under: broadcast, communications, cory doctorow, filters, gatekeepers, intermediary liability, op-ed from the future, permission

A Century Ago We Killed The Radio Commons; Don't Let The EU Do That To The Internet

from the a-history-lesson dept

As the EU gets set to vote on the EU Copyright Directive, it seemed like a good time for a little history lesson. Many people don't know this, but in the early days of radio, it was not just considered a broadcast media. It was considered an open commons for anyone to use. The airwaves were the public airwaves, and the public was free to use them:

It’s easy to forget that the broadcasting airwaves are—and once were treated as—a commons, owned by citizens, not powerful media companies.

At the dawn of the broadcasting era, the free market prevailed. The government set no rules. The 1912 Radio Act authorized the federal Commerce and Labor Department to issue radio station licenses to U.S. citizens upon request. Which it did...

Admittedly, as that article notes, this created some amount of chaos, mainly because the spectrum got too crowded, and there was widespread interference between different signals that made the whole space a mess. Over time, laws were put in place to "regulate" the wild west, but what happened was we turned what had been an open commons into a locked up space where only giant media companies could prevail. The US, at the very least, decided that the way to deal with this wild west was to treat spectrum as a property right that could be "licensed." And in doing so it set things up such that large broadcasters could collect many licenses and dominate markets.

What had been the open spaces of the public to use for a variety of creative endeavors turned into a locked down space for giant corporations.

While there are some notable differences, the attempt by the EU to pass Article 13 is truly an attempt to replay this unfortunate scenario nearly a century later. There was a good rationale for radio regulations in the past -- dealing with all of the interference that made using radio difficult -- and as one 1927 academic so succinctly put it: "highly annoying and almost destructive."

But, of course, we lost something when we went from an open radio system for the public to use to one that was locked up among just a few corporations. And the wonderful thing about the internet was that we didn't have the same limitations. There is no "interference" like there is with more limited radio spectrum. And while there are reasonable questions about companies dominating parts of the internet, others are not completely locked out as they were in radio.

Unfortunately, the entire design of the EU Copyright Directive is an attempt to do the same sort of thing to the internet: to lock it down. The EU Copyright Directive -- in particular Articles 11 and 13 -- are designed to make the internet a bland corporate broadcast medium dominated by a few giant companies. This dismisses the roots of the internet as a commons-based communications medium that anyone can use.

The very structure of Article 13 makes this clear. The demand that everything must be "licensed" on internet platforms makes no sense. Do you "license" content in order to communicate with your friends? Do you license a song to sing? Do you license it when you quote from a book? Licensing is not necessary for communication -- it is only necessary for "broadcast." This is the core problem that the legacy gatekeepers have with the internet. It's a communications medium, and they come from the broadcast era. Their entire structure is built off of licensing to broadcasters. And rather than recognize that everything has changed, their only play is to try to shove the internet into a similar broadcast structure.

We killed off the open commons of radio nearly a hundred years ago. Hopefully the EU chooses not to do the same to the internet this year.

Filed Under: article 11, article 13, broadcast, commons, communications, copyright, creativity, eu, eu copyright directive, eu parliament, gatekeepers, radio

Cord Cutting Sets More Records, Yet Many Cable Giants Still Refuse To Compete On Price

from the adapt-or-perish dept

Despite the obvious realities that ratings are sharply down and consumers are cutting the cord, there's a vibrant and loyal segment of cable and broadcast executives and analysts who still somehow believe cord cutting is a myth. Every few months, you'll see a report about how cord cutting is either nonexistent or overstated. Often, they'll try to claim that cord cutters are just lame weirdos they didn't want anyway, or that this is just a temporary trend that stops once more Millennials procreate.

Newsflash: it's not stopping.

The latest data from Kagan indicates traditional pay TV providers lost another 1.3 million subscribers last quarter as users continued to flock to streaming alternatives, embrace the use of over the air antennas, or embrace piracy (something analysts traditionally never mention, as if acknowledging this fact somehow condones it). A big part of this latest surge in losses were courtesy of Dish Network, which saw a record 367,000 departures as its satellite TV customers flocked to greener and cheaper pastures, including Dish's cheaper Sling TV alternative.

Industry analyst Craig Moffett, who used to be among those who mocked cord cutters as irrelevant, has dramatically changed his tune over the last few years. He continues to point out that these numbers are actually worse than they appear, since new homeowners and movers aren't signing up for traditional cable at their new addresses:

"It is the largest quarterly loss ever (the first time the industry lost over 1 million subscribers in a quarter),” writes Craig Moffett, senior research analyst, MoffettNathanson.

“With traditional pay TV penetration still hovering close to 80%, one would have expected growth of about 200,000 more subscribers per quarter on average than a year ago, based solely on the new household formations,” writes Moffett. "To the extent we are not seeing these new households in the subscriber data, we can conclude that cord-cutting has accelerated more than it appears, based on the reported subscribership data alone."

Obviously an 80% penetration rate for traditional cable is nothing to sneeze at.

But while traditional cable TV is still the preferred viewing option du jour, it's equally obvious that the industry needs to adapt sooner rather than later. Many of these customers are older viewers scared by new technology who won't be around for ever. Many others are sports fans, who still struggle to find streaming alternatives to cable given many broadcasters' painfully slow adaptation to this new paradigm, something exemplified by the aggressively terrible losses seen by ESPN in recent years. But leagues like the NFL are very slowly but surely figuring out that direct to consumer streaming is the future.

And while a few companies like Dish and AT&T have figured out that they have no choice in offering cheaper, more flexible viewing options (Sling TV and DirecTV Now respectively), much of the sector remains stuck in a dance of dysfunction that includes refusing to compete on price. Whether it's Charter's decision to mindlessly raise rates on the heels of its latest merger, or Comcast using bullshit fees to covertly jack up your monthly rate, there's a cavalcade of industry executives who haven't received one obvious message: the traditional cable cash cow is dying, and price competition and better, more flexible offerings are the only path forward.

Filed Under: broadcast, cable, cord cutting

Netflix Reminds Everyone That The Internet Isn't A Broadcast Medium With New Choose Your Own Adventure Shows

from the flip-to-page-45 dept

For over a decade, we have been making the point that the internet is a communications platform, not a broadcast medium. This seemingly obvious statement of fact has long been the subject of legacy content provider objections, which is part of what has led to much of the ongoing conflicts centering around intellectual property and digital business models. With big content players feeling control over their content slipping away in the internet, they have attempted to wrestle back that control by pretending the internet is something it isn't. For that reason, it's always a useful thing to point out to examples that remind people that the internet simply isn't a movie theater or television.

The latest example of that is provided by, of course, Netflix. Netflix is reportedly working on some new shows that are something of a "choose your adventure" type experience, which is something that traditional television simply isn't capable of.

Two of the interactive projects currently in negotiations are based on existing video game properties, the report suggests. That seems to include the previously announced Minecraft: Story Mode, which was largely completed with the help of Telltale before that company's massive layoffs last month. Netflix has frequently said it is not interested in getting directly into the video game business, however.

It's currently unclear just how much narrative branching will be possible in these Netflix specials, or how divergent the storylines can become based on viewer interaction. Filming extra content for such branching storylines can add significantly to the production cost of traditional linear TV narratives to create content that some viewers may never end up seeing.

"Interactive" is the key word here, one which precisely shows the separation between broadcast and communications mediums. It's a small thing, it might seem, and doesn't really touch on the typical intellectual property concerns we discuss at Techdirt, but it also beautifully highlights how the internet and broadcast mediums are simply different. And, if you accept that difference, the obvious conclusion is that they should not be treated and/or regulated as though they were the same. That important distinction has an impact across the world of how the internet functions and is treated by government and the law.

In fact, this type of interactive narrative storytelling has more in common with the video game market, or even the tabletop gaming market, than television and film.

Live TV programs and game shows have long integrated interactive elements via telephone calls, webpages, and custom apps. But fully interactive narrative stories have been more closely associated with video games, from text-based stories like Zork to Hollywood-style blockbusters like Detroit: Become Human and everything in between. This narrative flexibility has also been included in video game experiments focused on filmed live-action stories, ranging from the campy Night Trap to this year's innovative WarGames reboot.

So tuck this one away for the next time you hear someone harping on about how entertainment over the internet should be treated no differently than entertainment offered via broadcast. They're not the same. And, ultimately, that's a good thing, as that dissimilarity is what allows for cool new experiments such as what Netflix is trying to create here.

Filed Under: broadcast, choose your own adventure, content, interactive, video
Companies: netflix

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

from the this-is-bad dept

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

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

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

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

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

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

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

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

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

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

Copyright Industries Reveal Their Ultimate Goal: An Internet Where Everything Online Requires A License From Them

from the now-would-be-a-good-time-to-stop-it-happening dept

Yesterday, Mike took apart an extraordinarily weak attempt by the UK's music collection society, PRS for Music, to counter what it claimed were "myths" about the deeply-harmful Article 13 of the proposed EU Copyright Directive. On the same day, the Guardian published a letter from the PRS and related organizations entitled "How the EU can make the internet play fair with musicians". It is essentially a condensed version of the "myth-busting" article, and repeats many of the same fallacious arguments. It also contains some extremely telling passages that are worth highlighting for the insights that they provide into the copyright industries' thinking and ultimate goal. Here is the main thrust of the letter:

This is not about censorship of the internet, as the likes of Google and Facebook would have you believe. The primary focus of this legislation is concerned with whether or not the internet functions as a fair and efficient marketplace -- and currently it doesn't.

Once again, there is no attempt to demonstrate that Article 13 is not about censorship, merely an assertion that it isn't, together with the usual claim that it's all being orchestrated by big US Internet companies. The fact that over two-thirds of a million people have signed an online petition calling for the "censorship machine" of Article 13 to be stopped rather punctures that tired argument.

More interesting is the second sentence, which essentially confirms that for the recording industry, the Copyright Directive -- and, indeed, the Internet itself -- is purely about getting as much money as possible. There is no sense that there are other important aspects -- like encouraging ordinary people to express themselves, and to be creative for the sheer joy of creating, or in order to amuse and engage with friends and strangers. The fact that all these non-commercial uses will be adversely affected by Article 13 is irrelevant to the recording industry, which seems to believe that making a profit takes precedence over everything else. However, even if they choose to ignore this side of the Internet, the signatories of the letter are well-aware that there is a huge backlash against the proposed law precisely because it is a threat to this kind of everyday online use. Attempting to counter this, they go on:

It is important to recognise that article 13 of the proposed EU copyright directive imposes no obligation on users. The obligations relate only to platforms and rightsholders. Contrary to some sensationalist headlines, internet memes will not be affected, as they are already covered by exceptions to copyright, and nothing in the proposed article will allow rightsholders to block the use of them.

Techdirt pointed out yesterday why the first part of that is intellectually dishonest. The Copyright Directive won't impose obligations on users directly, but on the platforms that people use, which amounts to the same thing in practice. The letter then trots out the claim that Internet memes will not be affected, and specifically says this is because they are already covered by EU exceptions to copyright.

This is simply not true. Article 5 of the EU's 2001 Directive on the "harmonization of certain aspects of copyright and related rights in the information society" lays down that "Member States may provide for exceptions or limitations", including "for the purpose of caricature, parody or pastiche". However, that is optional, not compulsory. In fact, nineteen EU Member States -- including the EU's most populous country, Germany -- have chosen not to provide an exception for parody. Even assuming that memes would be covered by parody exceptions -- by no means guaranteed -- they are in any case illegal in 19 EU nations.

Licensing is not an option here. There are many diverse sources for the material used in memes, most of which have no kind of organization that could give a license. The only way for online companies to comply with Article 13 would be to block all memes using any kind of pre-existing material in those 19 countries without a parody exception. Worse: because it will be hard to apply different censorship rules for each EU nation, it is likely that the upload filters will block all such memes in the whole EU, erring on the side of caution. It will then be up to the person whose meme has been censored to appeal against that decision, using an as-yet undefined appeals mechanism. The chilling effect this "guilty until proven innocent" approach will have on memes and much else is clear.

The blatant misinformation about whether memes would be blocked is bad enough. But in many ways, the most shocking phrase in the letter is the following:

Actually, article 13 makes it easier for users to create, post and share content online, as it requires platforms to get licences, and rightsholders to ensure these licences cover the acts of all individual users acting in a non-commercial capacity.

There, in black and white, is the end-game that the recording industry is seeking: that every online act of individual users, even the non-commercial ones, on the major platforms must be licensed. But the desire to control the online world, and to dictate who may do what there, is not limited to the recording companies: it's what all the copyright industries want. That can be seen in Article 11 of the Copyright Directive -- the so-called "snippet tax" -- which will require licensing for the use by online sites of even small excerpts of news material.

It's also at the root of the core problem with Article 3 of the proposed EU law. This section deals with the important new field of text and data mining (TDM), which takes existing texts and data, and seeks to extract new information by collating them and analyzing them using powerful computers. The current Copyright Directive text allows TDM to be carried out freely by non-profit research organisations, on material to which they have lawful access. However, companies must pay publishers for a new, additional, license to carry out TDM, even on material they have already licensed for traditional uses like reading. That short-sighted double-licensing approach pretty much guarantees that AI startups, which typically require frictionless access to large amounts of training data, won't choose to set up shop in the EU. But the publishing industry never cares about the collateral damage it inflicts, provided it attains its purely selfish goals.

Although it's rather breathtaking to see the copyright world openly admit that its ultimate aim is to turn the Internet into a space where everything is licensed, we shouldn't be surprised. Back in 2013, Techdirt wrote about the first stages of the EU's revision of its copyright law. One preliminary initiative was called "Licences for Europe", and its stated aim was to "explore the potential and limits of innovative licensing and technological solutions in making EU copyright law and practice fit for the digital age". What we are seeing now in the proposed Copyright Directive is simply a fulfillment of these ambitions, long-cherished by the copyright industries. If you aren't happy about that, now would be a good time to tell the EU Parliament to Save Your Internet. It may be your last chance.

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

Filed Under: article 13, broadcast, copyright, copyright directive, eu, eu copyright directive, intermediary liability, license

Latest Text Of EU Copyright Directive Shows It's Even Worse Than Expected: Must Be Stopped

from the the-internet-is-at-risk dept

One of the oddities of the vote a few weeks back in the EU Parliament's JURI Committee concerning the proposed EU Copyright Directive, was that there was no published text of what they were voting on. There were snippets and earlier proposals released, but the full actual text was only just released, and it's not in the most readable of formats. However, what is now clear is that the JURI Committee not only failed in its attempts to "fix" the many, many, many problems people have been raising about the Directive, but it actually makes many of the problems worse -- including saying that online platforms become legally responsible for any copyright infringement on their platforms. This new text effectively says that the internet should only be a broadcast medium, and no longer allow for open user platforms.

MEP Julia Reda has an excellent analysis of what's problematic about the released text, but I want to focus in on a few of the more bizarre changes in particular. First, on the whole Article 11 "link tax" bit, JURI apparently thought they could quiet down the protests by adding a line that says:

2a. The rights referred to in paragraph 1 shall not extend to acts of hyperlinking.

So now supporters of Article 11 will point to this new line and say "see?!? it's not about a link tax." Which would be great... if the rest of the text actually lived up to that. Unfortunately, basically every bit of the rest of Article 11 undermines that. Because it still creates a license requirement on a snippet of any length, and most URLs these days include a "snippet" of the headline of an article within the URL itself. Unless everyone starts stripping the text that includes such snippets -- making URLs significantly less useful -- those links will still run afoul of this licensing/tax requirement. Thus, them declaring that a hyperlink is not covered is meaningless if the rest of the directive can only be read in a manner that would include nearly all links.

Once again, it appears this amendment was written by someone who has no functional understanding of how the internet works, and thus does not realize how badly drafted this proposal is. It's the kind of thing a non-technically-inclined lawyer would write in response to people calling this a "link tax." "Oh," they would say, "well, let's just say it doesn't apply to links," even if any reading of the directive would mean it absolutely must apply to most links -- especially any that use any sort of descriptive text. On top of that if you share a link on a platform like Twitter or Facebook that automatically sucks in some snippet text, you're now violating the law as well.

Another change made by JURI is much, much, much more concerning. This is on Article 13, the part about mandatory upload filters. For unclear and unknown reasons, JURI decided to expand Article 13 to make it even more ridiculous. First, it redefines an "online content sharing services" to completely wipe out any intermediary liability protections for such platforms. The most standard form of protecting platforms from liability is to note (correctly!) that a platform is just a tool and is not the publisher or speaker of works posted/uploaded by third-party users. That's sensible. You can then (as the EU already does) put certain restrictions on those protections, such as requiring a form of a notice-and-takedown regime. But, the fundamental, common sense, idea is that a platform is the tool, and not the actual "speaker" of the third party content.

But JURI wiped that out. Instead, it explicitly states that any content shown via online platforms are the responsibility of those platforms by saying that such platforms "perform an act of communication to the public" in showing the content uploaded by users. This is a massive change and basically wipes out all intermediary liability protections for platforms:

Online content sharing service providers perform an act of communication to the public and therefore are responsible for their content. As a consequence, they should conclude fair and appropriate licensing agreements with rightholders. Therefore they cannot benefit from the liability exemption provided...

That's... bad. It's much, much worse than the original text from the commission, which made it clear that intermediary liability protections in the E-Commerce Directive still applied to such platforms. Here they explicitly remove that exception and say that platforms cannot benefit from such protections. As Reda points out, under this reading of the law almost any user-generated site on the internet will be in violation, and potentially at significantly greater legal liability than the various "pirate" sites people have complained about in the past:

By defining that platforms – and not their users – are the ones “communicating” uploaded works “to the public”, they become as liable for the actions of their users as if they had committed them themselves. Let’s imagine a company that makes an app for people to share videos of their cats. If even one user among millions uses the CatVideoWorld3000 app to record a Hollywood movie off a theater screen rather than their kitty, that’d be legally as bad as if the business’ employees had committed the copyright infringement themselves intentionally to profit off of it. The Pirate Bay, MegaUpload and Napster were all much more innocent than any site with an upload form will now be in the eyes of the law.

And that's not all that JURI did. It also outlawed image search with an amendment. No joke.

Use of protected content by information society services providing automated image referencing

Member States shall ensure that information society service providers that automatically reproduce or refer to significant amounts of copyright-protected visual works and make them available to the public for the purpose of indexing and referencing conclude fair and balanced licensing agreements with any requesting rightholders in order to ensure their fair remuneration. Such remuneration may be managed by the collective management organisation of the rightholders concerned.

This was not discussed previously and not recommended by the EU Commission. But, what the hell, while they're outlawing Google News, why not outlaw Google Images in the same shot.

There's a lot more in the text, but it's really, really bad. Effectively, the document envisions a world in which everything on the internet is "licensed" and any platform will be legally liable for any content on its platform. What you get in that world is not the internet -- the greatest communications medium ever made. What you get is... TV. A limited broadcast medium only for those who are pre-checked by gatekeepers.

It is incredibly important that the EU not move forward with this Directive. Contact the EU Parliament now and tell them to #SaveYourInternet before they vote on this proposal this Thursday.

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

Hollywood's Behind-The-Scenes Support For SESTA Is All About Filtering The Internet

from the you-know-it dept

Over at the EFF blog, Joe Mullin has an excellent discussion on why Hollywood is such a vocal supporter of SESTA, despite having nothing to do with Hollywood. It's because the bill actually accomplishes a goal that Hollywood has dreamed about for years: mandatory filtering of all content on the internet.

For legacy software and entertainment companies, breaking down the safe harbors is another road to a controlled, filtered Internet—one that looks a lot like cable television. Without safe harbors, the Internet will be a poorer place—less free for new ideas and new business models. That suits some of the gatekeepers of the pre-Internet era just fine.

The not-so-secret goal of SESTA and FOSTA is made even more clear in a letter from Oracle. “Any start-up has access to low cost and virtually unlimited computing power and to advanced analytics, artificial intelligence and filtering software,” wrote Oracle Senior VP Kenneth Glueck. In his view, Internet companies shouldn’t “blindly run platforms with no control of the content.”

That comment helps explain why we’re seeing support for FOSTA and SESTA from odd corners of the economy: some companies will prosper if online speech is subject to tight control. An Internet that’s policed by “copyright bots” is what major film studios and record have advocated for more than a decade now. Algorithms and artificial intelligence have made major advances in recent years, and some content companies have used those advances as part of a push for mandatory, proactive filters. That’s what they mean by phrases like “notice-and-stay-down,” and that’s what messages like the Oracle letter are really all about.

There's a lot more in Mullin's post, but it actually goes much beyond that. Every rock you lift up in looking at where SESTA's support has come from, you magically find Hollywood people scurrying quietly around. We've already noted that much of the initial support for SESTA came from a group whose then board chair was a top lobbyist for News Corp.. And, as we reported last month, after a whole bunch of people we spoke to suggested that much of the support for SESTA was being driven by former top News Corp. lobbyist, Rick Lane, we noticed that a group of people who went around Capitol Hill telling Congress to support SESTA publicly thanked their "partner" Rick Lane for showing them around.

In other words, it's not just Hollywood seeing a bill that gets them what it wants and suddenly speaking up in favor of it... this is Hollywood helping to make this bill happen in the first place as part of its ongoing effort to remake the internet away from being a communications medium for everyone, and into a broadcast/gatekeeper dominated medium where it gets to act as the gatekeeper.

And if you think that Hollywood big shots are above pumping up a bogus moral panic to get their way, you haven't been paying attention. Remember, for years Hollywood has also pushed the idea that the internet requires filters and censorship for basically any possible reason. Back during the SOPA days, it focused on "counterfeit pharmaceuticals." Again, not an issue that Hollywood is actually concerned with, but if it helped force filters and stopped user-generated content online, Hollywood was quick to embrace it.

Remember, after all, that the MPAA set up Project Goliath to attack Google, and a big part of that was paying its own lawyers at the law firm of Jenner & Block to write demand letters for state Attorneys General, like Mississippi Attorney General Jim Hood, who sent a bogus subpoena and demand letter to Google (written by the MPAA's lawyers and on the MPAA's bill). And what did Hood complain about to Google in that letter written by the MPAA's lawyers? You guessed it:

Hood accused Google of being “unwilling to take basic actions to make the Internet safe from unlawful and predatory conduct, and it has refused to modify its own behavior that facilitates and profits from unlawful conduct.” His letter cites not just piracy of movies, TV shows and music but the sale of counterfeit pharmaceuticals and sex trafficking.

The MPAA has cynically been using the fact that there are fake drugs and sex trafficking on the internet for nearly decade to push for undermining the core aspects of the internet. They don't give a shit that none of this will stop sex trafficking (or that it will actually make life more difficult for victims of sex trafficking). The goal, from the beginning was to hamstring the internet, and return Hollywood to what it feels is its rightful place as the gatekeeper for all culture.

Indeed, our post earlier about Senator Blumenthal's bizarre email against a basic SESTA amendment from Senator Wyden to fix the "moderator's dilemma" aspect was quite telling. He falsely claimed that adding in that amendment -- that merely states that the act of doing some moderation or filtering doesn't append liability to the site for content they fail to filter or moderate (which is the crux of CDA 230's "Good Samaritan" language) -- would create problems for Hollywood. Indeed, a key part of Blumenthal's letter is that this amendment "has the potential to disrupt other areas of the law, such as copyright protections."

But that makes zero sense at all. CDA 230 does not apply to copyright. It doesn't apply to any intellectual property law, as intellectual property is explicitly exempted from all of CDA 230 and has been from the beginning. Nothing in the Wyden amendment changes that. And... it does seem quite odd for Blumenthal to suddenly be bringing up copyright in a discussion about CDA 230, unless it's really been Hollywood pushing these bills all along, and thus in Blumenthal's mind, SESTA and copyright are closely associated. As Prof. Eric Goldman notes, talking nonsensically about copyright in this context appears to be quite a tell by Senator Blumenthal.

Filed Under: broadcast, cda 230, censorship, communications, dmca, filtering, fosta, hollywood, intermediary liability, sesta
Companies: mpaa