Dear Americans: Be Very, Very Afraid Of The EU's New Copyright Rules

from the the-closing-of-the-open-internet dept

Former MEP Julia Reda, who lead the fight to block the problematic parts of the EU Copyright Directive (and who came very close to succeeding against huge odds, but eventually lost) has published a really important piece for the Berkman Klein Center at Harvard about why the new Copyright Directive should terrify every American who recognizes the importance of an open internet. First off, these laws mostly target American companies -- many of which may just choose to follow the new EU rules globally.

Not only are European policy-makers keener than their US counterparts to regulate the mostly American tech companies that have gained significant market power over the last two decades. For better or for worse, the European Union has increasingly become capable of setting global regulatory standards, through the inclusion of its internet legislation in trade agreements, or by making compliance with these rules a precondition for accessing the vast EU market of over 500 million consumers.

That also means that the legacy entertainment and publishing industries who pushed so hard for the Copyright Directive in the past, are already looking at using the EU Copyright Directive as a wedge to get this put into the law elsewhere.

There is a tried-and-tested tradition of Hollywood companies lobbying for stricter copyright in Europe, just to turn around to US policy-makers to demand the same extensions be enacted in domestic law, in order to “stay competitive”. This strategy was successful in the case of the Sonny Bono Copyright Act of 1998, which extended copyright terms to 70 years after the death of the author, following a similar term extension in Europe in 1993. The purpose of the term extension, according to the Senate report, was to “provide significant trade benefits by substantially harmonizing U.S. copyright law to that of the European Union”. Of course, the EU would have been unlikely to extend its copyright terms to begin with, had it not been for the lobbying by American entertainment companies. It should therefore not come as a surprise that the US Copyright Office has repeatedly referred to the work on the new EU copyright directive as a reason for considering the overhaul of the US framework for copyright liability of online platforms, enshrined on section 512 of the Digital Millennium Copyright Act.

She then goes on to explain how Article 17 (what had been Article 13) will change the way internet platforms operate -- in a manner that will make it much more difficult for new startups platforms to be created, and where platforms will be forced to make it more difficult for anyone to post their own content. The whole thing will be an absolute mess, with significant litigation early on.

It’s impossible for platform operators to predict which copyrighted works by which rightsholders will be uploaded to their platform. Since copyright arises at the moment that a work is created, nowadays every person with a smartphone is a copyright holder, and most people frequently upload their works to the web (mostly in the form of pictures). It is therefore absolutely impossible for platforms to contact all rightsholders in the world and ask them for a license, on the off chance that one of their works might be uploaded to the platform at some point in the future. The directive is also silent on whether platforms would be forced to accept unfair license conditions at any cost to their own business.

The real effects of Article 17 will depend on the interpretation of “best efforts”. What level of diligence in blocking content, identifying rightsholders and negotiating license agreements can be expected of platforms depends on many factors, including their size, profitability and the types of content they host. Article 17 exposes platform operators to a lot of legal uncertainty and it will take many years for courts to hash out what these rules will mean in practice. The outcome is likely to privilege large, commercial rightsholders like the entertainment industry giants over independent artists.

The full article is worth reading -- highlighting how poorly filters actually work, and how the last minute attempts by EU lawmakers to "protect' user's rights has only resulted in contradictory requirements, which the first country (France) to try to implement a law based on the directive has "solved" by just ignoring the user rights parts.

And get ready, because next year you can bet that entertainment industry lobbyists are going to try to bring that law into the US as well. They're going to try to do it before it becomes evidence just what a complete and utter mess it created in the EU.

Filed Under: article 13, article 17, copyright, eu copyright directive, filters, intermediary liability, julia reda

Could Article 13's Upload Filters Be Thrown Out Because Of The EU-Canada Trade Deal CETA?

from the it-ain't-over-yet dept

Now that the EU's awful Copyright Directive has been passed, it would be easy to give up, and assume that nothing more can be done. That's far from the case. Under EU law, this directive must now be implemented through national legislation in all of the EU Member States. Although that process is compulsory, there is still plenty of scope for interpreting what exactly the Copyright Directive's text means. As a result, the fight against the worst elements -- the upload filter and ancillary copyright for news -- can now begin at a national level.

Moreover, there are other ways in which these aspects of the Copyright Directive can be challenged once they are law. A number of people have pointed out that Article 13 (now renumbered as Article 17) effectively imposes an obligation on sites to carry out "general monitoring". That's something that the Court of Justice of the European Union (CJEU), the highest court of the region, has already thrown out because it runs counter to Article 15 of the EU's e-Commerce Directive. Once upload filters are implemented in national law, they can be challenged in the local courts. Since a question that affects the whole of the EU is involved -- are upload filters a form of general monitoring? -- the national court would almost certainly make a reference to the CJEU for clarification. The hope has to be that the whole approach would be ruled as inadmissible, as has already happened twice with other cases of general monitoring.

That's one obvious avenue to pursue. But as the Pirate Party MEP Julia Reda mentioned in a recent Techdirt podcast, there's another route worth investigating. Article 20.11 of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada reads as follows:

Subject to the other paragraphs of this Article, each Party shall provide limitations or exceptions in its law regarding the liability of service providers, when acting as intermediaries, for infringements of copyright or related rights that take place on or through communication networks, in relation to the provision or use of their services.

Moreover:

The eligibility for the limitations or exceptions referred to in this Article may not be conditioned on the service provider monitoring its service, or affirmatively seeking facts indicating infringing activity.

So the question is whether that excludes the kind of monitoring activity that the EU Copyright Directive will require. Obviously, the complex interaction of CETA and the new directive is something that will need consideration in the appropriate legal forum, whatever that might be. But at the very least, the idea that CETA could nullify Article 13/17 is an intriguing possibility.

In the past, the copyright industry has used commitments in existing trade deals to block proposals to create much-needed rights and exceptions for members of the public. It would be poetic justice if for once a trade deal blocked a key part of a new law that Big Copyright wanted so desperately.

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

Filed Under: article 13, canada, ceta, copyright, eu, eu copyright directive, intermediary liability, julia reda, trade agreements

EU Parliament Paid News Publisher AFP To Create Bogus Propaganda Video In Favor Of EU Copyright Directive

from the that-doesn't-seem-right dept

So we recently wrote about the bizarre situation in the EU whereby the EU Parliament's official Twitter feed had tweeted a pure propaganda video in support of the EU Copyright Directive. This was weird on many levels. First of all, the Copyright Directive has not yet been voted upon, and you would think that the EU Parliament itself should be neutral on the question of whether or not a law should be passed -- especially one with as much controversy as the Copyright Directive. Second, the video was filled with a bunch of blatantly false information (mostly from MEP Axel Voss). It's one thing for the EU Parliament to be promoting a specific outcome on a legislative vote, and it's another altogether to support that with false information delivered by just one MEP. Does the EU Parliament do this on other issues as well? The third oddity, is that the video certainly looked very professionally produced, raising questions of just who put it together.

MEP Julia Reda used her position as an MEP to ask those questions of the Parliament and now has the answer. The EU Parliament -- for reasons that are still unclear -- paid Agence France Press (AFP) to produce the video:

AFP, of course, is a giant publisher that stands to potentially benefit from Article 11 in particular. And, apparently, AFP has been one of the more aggressive lobbying organizations in Brussels pushing for Article 11. Hell, all the way back in 2005, AFP actually sued Google for linking to its stories (spoiler alert: it did not win). So for the EU Parliament to then use public funds to ask a clearly interested party to produce a propaganda video seems highly questionable. This is the akin to say, the US Congress asking Pfizer to produce a video that will go out under "Congress" official imprimatur, about prescription drug pricing. That would be a scandal. Yet, in the EU, not too many officials seem particularly bothered by this.

Of course, it should be noted that AFP does not exactly have the greatest track record on copyright itself. In 2010, the company was caught having used someone's photo of the earthquake aftermath in Haiti without licensing, and when called on it, AFP sued the photographer with a bizarre argument that anything that was posted to Twitter was free for anyone to use (no, really). Eventually, AFP was forced to pay out $1.2 million for that debacle. You'd think that experience might make the company a little more careful about supporting extremist copyright positions, but for some reason in the copyright debates, the maximalists never think the law will seriously apply back to them.

Meanwhile, instead, AFP is publishing hysterically misleading articles (that feed out to various licensees of AFP content) all about how evil Google is actively lobbying over Article 11. No, really. While (at least) the AFP article notes that AFP supports Article 11, it leaves out its active participation in the lobbying effort -- including the creation of the aforementioned video, framing the entire story about how big bad Google is doing all the lobbying over the law.

Filed Under: article 11, article 13, axel voss, bias, corruption, eu copyright directive, eu parliament, julia reda, propaganda
Companies: afp

Why Is The EU Parliament Pushing Fake Propaganda From Hollywood?

from the a-hollywood-story dept

What the hell is going on in the EU these days? The EU Commission put out a Medium post that literally mocked the public as an "angry mob" for raising legitimate concerns about the EU's proposed Copyright Directive. And that followed a bizarrely incoherent "Q & A" page put out by the EU Parliament's Legislative Affairs Committee (JURI), spewing pure nonsense about the Copyright Directive. In both cases, those involved were publicly mocked for this (to the point that the Commission even took down its post, but blaming others for misunderstanding it as the reason).

But now the EU Parliament is doubling down on this absurdity. Its official Twitter feed posted this bit of pure propaganda:

If, for some reason, you can't read that, it says:

Your memes are safe 🙌 Freedom of expression is not affected 👌 It's all about fair payment to content creators 💶

And then urges people to watch a short video that is simply bullshit propaganda put forth by an industry association, called "Europe for Creators." Think about this for a second. Here is the official feed of the entire European Parliament -- which has not yet voted on the EU Copyright Directive -- posting corporate propaganda from a trade group, pushing misleading to outright false messages, in support of a bill that is designed to financially benefit that industry.

In what world is that okay?

MEP Julia Reda has gone through and highlighted many of the problems with the video in a detailed Twitter thread. To make it easier to read, I'm turning that thread into plaintext here:

This video by @Europarl_EN on the draft #copyright directive has sparked a lot of outrage, and rightfully so! First, the Commission called critics of the reform as a mob, now the Parliament chimes in.... The Parliament should maintain neutrality in its communication until the final version of the #copyright directive is adopted. The video not only creates the impression that the directive has already been agreed, there are several factual mistakes and problematic aspects:

In the beginning of the video a balloon is shown, carrying the “Europe for Creators” logo. It belongs to a controversial lobby campaign by a group of collecting societies, music publishers and record producers. The logo of Europe for Creators tries to rip off the logo of @EFF, possibly to create the impression that this is a civil society campaign. Advertisements for commercial interest groups have no place in a video of a political institution.

The video claims that the reform is directed at “large platforms”: In fact, the size of the platform does not matter for the application of #article13, merely whether it hosts “large amounts” of protected content. This can also be the case for a platform run by a single person. The video says a lighter regime applies to platfoms that have an turnover below 10 Million *or* less than 5 million unique visitors. This is just wrong. Actually, the lighter regime only applies if both criteria are met, and platforms are also younger than 3 years old.

Another false statement is that “there is no requirement for platforms to put filters in place”: Yes there is, as soon as a rightholder does not wish to offer a license, para 4 (b) and (c) require platforms to use an #uploadfilter in order to escape liability.

The video says “your memes are safe”: This is misleading. #Article13 says that member states should allow parodies, but the criticism is not that memes will be illegal, but that filters will block them automatically, because they can’t distinguish a parody from ©️ infringement.

At the end, @AxelVossMdEP says that any change to a copyrighted work is allowed under #Article13. It’s not. There’s a list of exceptions in Article 13 (5) that should apply: quotation, criticism, review, caricature, parody & pastiche. Other transformative uses remain forbidden.

Reda then notes that, as a member of Parliament, she has submitted a request to inspect the internal documents that resulted in this video being made and published on the official EU Parliament Twitter feed. I actually think Reda could have gone even further. Beyond the flat out lies by Axel Voss in the video (saying 10 million Euros "or" less than 5 million uniques, and leaving out that those only apply to companies less than 3 years old), Voss also makes this odd statement, saying that if a company qualifies they are "a little bit exempted." How is one "a little bit exempted"? He's actually choosing his words carefully, because he knows that even if you qualify for all three conditions (which will only cover a very small number of platforms) you're not really exempted at all. You just have slightly less onerous conditions thrust upon you.

Of course, with elections coming up in just a few months, it does seem like the EU Parliament may regret this decision. Just skimming through most of the responses to this tweet, it doesn't seem to be convincing anyone of anything... other than that they want to vote the bums out in May.

And there are a lot more like that. Indeed, I don't seem to see anyone actually praising the EU Parliament's decision to post this nonsense, which makes you wonder why they even bothered.

Filed Under: article 13, axel voss, bias, copyright, eu, eu copyright directive, eu parliament, julia reda, lies, propaganda

Guy In Charge Of EU Copyright Directive Claims He Didn't Know What He Voted On, Needs To Fix Things

from the well,-that-builds-confidence dept

Following the decision earlier this week of the EU Parliament to vote for the destruction of the open web by putting in place some pretty awful copyright proposals, people began highlighting more and more problems with the bill. Most of the focus before the vote had been on two particular articles, Article 11 and Article 13. But there are many other problems in the Directive as well -- it was just getting to be overwhelming to get into the weeds on all of them. One area of concern was in Article 12, which included a special new form of copyright for sporting events. Specifically, with no debate or discussion the legal affairs committee of the EU Parliament added in text saying that sporting event organizers would gain absolute control over recording, sharing and presenting any film clips -- even those that would otherwise be deemed legal in other copyright contexts. And yes, the law implies that if you're at a sports event, you can't even film anything from your own seat as that is reserved solely to the event organizers.

Incredibly, after the vote approving the directive, reporter Emanuel Karisten of the Swedish publication Breakit, asked Voss about this and Voss gave a fairly astounding answer, stating that "this was kind of a mistake" and that "no one had been aware of this." Later he states that he didn't know it was in there and he'll have to fix it:

Voss: This was kind of mistake I think by the JURI committee. Someone amended this. No one had been aware of this.

Reporter: But it was passed...

... discussion by someone with Voss saying that it's really about gambling/betting operations before Voss jumps back in ...

Voss: I didn’t know that this was in the proposal so far, so of course I have to deal with it now.... I do not consider that the commission and council will have this inside the proposal.

Later he says "because of the time and pressure" they concentrated on other areas of the bill. Which... does not seem like a good excuse.

You can listen to the exchange here:

Meanwhile, MEP Julia Reda is calling bullshit on the claim that Voss was "unaware" that this was in the proposal, noting not only that she had written about the issue prior to the vote, but that she had raised it directly with Voss and his colleagues:

There are a few possibilities here, none of which make Voss look any good. He either voted for an amendment he hadn't read and/or didn't understand, or he's lying to this reporter. It also suggests that rather than taking the concerns of critics like Reda seriously, Voss just tuned them out and happily voted away for such horrible proposals.

We've raised questions before about Voss's views on all of this, as he seems almost hysterically uninformed about how actual copyright policy works, even as he drives forward such a horrible policy. This seems to be yet more evidence that a few special interests made it clear to Voss what they wanted to do, and he just agreed to do that, no matter what concerns anyone else had.

Filed Under: axel voss, copyright, eu copyright directive, julia reda, sports

Forget The GDPR, The EU's New Copyright Proposal Will Be A Complete And Utter Disaster For The Internet

from the wake-up-folks dept

Today is GDPR day, and lots of people are waking up to a world in which EU regulations are having a widespread (and not always positive) impact on how the internet works. As we've detailed over the past couple of years, while there are many good ideas in the GDPR, there are also many ridiculously bad ones, combined with poorly thought out drafting, and we're already seeing some of the fallout from that. But, believe it or not, there's an even larger threat from the EU looming, and it's received precious little attention: the EU's new copyright reform proposal is set to be voted on next month and it will truly be disastrous to the internet. As it currently stands, it will require widespread censorship in the form of mandatory filtering and also link taxes that have already been shown to be harmful to news.

European Parliament member Julia Reda is sounding the alarm and asking people to speak out. As she notes, many of the folks now freaking out about the GDPR wish they got involved over two years ago when it was being debated. And if you're concerned about how problematic this new copyright reform will be for the internet, now is the time to speak out (yes, even if you're not in the EU):

On the topic of copyright, you NOW have the chance to have an influence – a chance that will be long lost in two years, when we’ll all be “suddenly” faced with the challenge of having to implement upload filters and the “link tax” – or running into new limits on what we can do using the web services we rely on.

In stark contrast to the GDPR, experts near-unanimously agree that the copyright reform law, as it stands now, is really bad. Where in the case of the GDPR the EU institutions pushed through many changes against the concerted lobbying efforts of big business interests, in the copyright reform they are about to give them exactly what they want.

Parliament and Council have had over a year and a half to fix the glaring flaws of the Commission proposal – but despite their growing complexity, the latest drafts of both institutions fail to meet basic standards of workability and proportionality

Reda's post goes on to detail the many, many problems of the current copyright proposal -- in which merely linking to a news site may require paying money (link tax) and where concerns about how that might negatively impact the entire internet are being woefully ignored. Perhaps even worse is the mandatory filtering idea. The big record labels and movie studios have, of course, been pushing for this kind of thing for years to get back at Google (mainly) and Facebook (a little bit). But, here's the thing: both Google and Facebook already have those filters (and spent tens of millions of dollars on them). This kind of law fucks over everyone else.

And, it's actually even worse than a mandatory filtering rule -- because the EU realized that such a rule would violate other EU laws. So, instead, it decided to hack away at intermediary liability protections to make mandatory filtering necessary:

Make platforms directly liable for all copyright infringements by their users, and then offer that they can avoid that unreasonable liability if they can show they’ve done everything in their power to prevent copyrighted content from appearing online – namely, by deploying upload filters (Article 13, paragraph 4). Which remain totally optional, of course! Wink, wink, nudge, nudge.

Tragically, the only remaining point of disagreement in Council is whether this proposal is bad enough, or should be made worse.

We've already spent years explaining how this will lead to widespread censorship online, but it will also be a disaster for basically all of the non-Google/Facebook platforms out there. Mid-size companies like Github have already talked about how this could effectively destroy its ability to operate, and lots of other sites would be impacted as well. Any kind of forum site would be at serious risk. Reddit, Pinterest, Twitch, Imgur, Wordpress, Medium, Vimeo. This would create massive liability for all of those sites, making it nearly impossible for many of them to function in the EU.

Reda notes that a new draft could make this situation even worse in noting that even having filters won't be enough to avoid liability:

Mr Voss’ latest draft expands the scope of the censorship machines proposal to all web platforms (a) whose purpose is to “give access to copyrighted content uploaded by users” and which (b) “optimise” that content. What counts as optimising? Among a long list of actions, we find that “displaying” the uploads already makes platforms legally liable for any copyright infringement they may include (Recital 37a).

And in his version, web services can’t even avoid liability by implementing upload filters. To protect themselves from being sued, they would need to get licenses from all rightsholders that exist on the planet before allowing user uploads to go online, just in case the upload may contain (parts of) any of their works.

He also claims that checking every new user upload for whether it includes one of hundreds or thousands of specific copyrighted works somehow does not constitute “general monitoring” (Recital 39), which would be forbidden – now that’s some wishful lawmaking.

As Reda also points out, most of the EU member states appear to be supportive of these horrible ideas (or even pushing to make it worse). What now stands between this horrible law making a mess of the internet is just the EU Parliament which is currently scheduled to vote on this in late June (probably the 20th or 21st). If you are in the EU now is absolutely the time to speak up. If you're outside the EU, it also would help to speak up and let the EU Parliament know that this is a horrible idea that will have significant problems for the wider internet, free speech and innovation.

Filed Under: axel voss, censorship, copyright, eu, eu parliament, intermediary liability, julia reda, link tax, mandatory filters

EU Government Looking To Expand, Standardize Whistleblower Protections

from the keeping-the-union-honest dept

Some good news is on the way for European whistleblowers, as Pirate Party member Julia Reda reports. A legal proposal to strengthen and unify whistleblower protections has been published by the European Commission. It does far more than restate existing protections. It expands them to cover the private sector and does away with some (but not all) of the barriers standing in the way of exposing fraud, abuse, and misconduct.

The proposal covers a wide variety of industries and all government entities. It also strips away one key barrier by eliminating the need for whistleblowers to justify their complaints and disclosures. All whistleblowers need is "reasonable grounds to believe" what they're reporting is true and falls under the coverage provided by the proposal.

Confidentiality is required and protections -- both from civil and criminal charges -- are part of the proposal. The proposal also suggests whistleblowers should be given police protection if called to testify in criminal cases resulting from their whistleblowing.

But it's not all good news. The Greens/EFA fact sheet [PDF] on the proposal notes a few areas need improvement. To begin with, confidentiality is supposedly guaranteed but the proposal does not allow for the possibility of anonymous reporting. In addition, whistleblowers won't be afforded protections unless they take their complaints through proper channels, no matter how badly that might turn out for the would-be whistleblower.

Julia Reda uses the example of Antoine Deltour, a PriceWaterhouseCooper employee who exposed corporate tax evasion schemes participated in by the Luxembourg government. According to the rules put in place by this proposal, Deltour would have had to take his complaints to his employer and the same government he exposed as complicit in tax evasion. There is an outlet for going directly to the press, but it hinges on post-whistleblowing fact finding, which could still result in arrests and criminal charges before everything is sorted out. This happened to Deltour, who was convicted of stealing trade secrets before a Luxembourg court declared his actions whistleblowing.

The report [PDF] backing the proposal gives several more examples of how whistleblowing has saved lives, not just public funds.

The public disclosure by Dr. Jiang Yanyong, which revealed the gravity of the Severe Acute Respiratory Syndrome (SARS) virus to the public in 2003, is an example of whistleblowing that potentially saved millions of lives. According to the World Health Organization the SARS outbreak led to 8,098 cases and 774 deaths.

It was an employee of Eternit, a Swiss manufacturer of roofing and panelling material, who helped launch an investigation into the lack of compliance with health and safety regulations and negligence at Eternit’s Italian manufacturing operation in 1970 and 1980s, estimated to have led to more than 2,000 asbestos-related deaths of workers, their families and local residents.

Broader protections, applied consistently is the plan. And it's (mostly) a good one. Unfortunately, it's bound to run into heavy resistance on its way to becoming EU law. There's nothing in this for corrupt corporations and government agencies, both of which rely on each other to remain free of public accountability.

Filed Under: eu, julia reda, whistleblowers