Wherein The Copia Institute Tells The Copyright Office That Link Taxes Are A Good Idea Only If You Want To Kill Off Journalism

from the world's-worst-ideas dept

It's hard to believe that even after the huge disaster "link taxes" have been in Europe and Australia that people would push to have them in the United States, and yet here we are. This brewing bad idea has some foolish friends in Congress, who tasked the Copyright Office with doing a study on the viability of importing this nonsense into American law, and via our already over-encumbered copyright law. The Copia Institute filed a public comment as part of this study and provided testimony at a hearing in December. In both, we pointed out that a site like Techdirt is exactly the sort of small, independent media outlet such a scheme is supposed to help yet is instead exactly the sort of small, independent media outlet such a scheme most definitely would hurt.

While some of its advocates insist it is not actually a "link tax" being proposed, and instead something fancier-sounding ("ancillary copyright"), the inevitable result will be equally ruinous to the very journalistic interests this scheme is ostensibly supposed to advance by destroying the very thing they all ultimately depend on: the ability to connect to audiences. It will have this effect because the whole point of this scheme is to attack the platforms and services that currently have the nerve to help them make that connection by linking to these media sites. After all, the thinking apparently goes, how dare these platforms and services deliver media outlets this valuable audience attention without paying for the privilege of getting to do them this enormous favor?

The defects of this plan to essentially tax the platforms and services that provide media outlets with this critical benefit are significant. For example, it completely offends the goals and purpose of both copyright law and the First Amendment, which exist to help ensure that information and ideas can spread. It offends it by design, by deliberately creating a regulatory regime that punishes the platforms and services that facilitate this spread. It also offends the First Amendment more specifically in how it targets the expressive freedom of the platforms and services themselves to refer people to others’ expression.

It is also completely at odds with its own professed goal. These platforms and services are giving media outlets everything they ever said they wanted: audience attention. Yet now these outlets would bite the hand that feeds, and for no good reason. Because even to the extent that this scheme is predicated on the idea of helping journalistic enterprises make more money, it will have the exact opposite effect. No media outlet makes money without an audience. You can’t profit from audience attention if there is no attention. And there won’t be any attention with schemes like this obstructing platforms and services from connecting media outlets and their expression to those audiences.

As we’ve seen in other countries, schemes like these have starved media outlets of their audience lifeblood by effectively unlinking them from the world. It has this effect in part because it deters the platforms and services that currently drive traffic to media outlets from being in the drive-traffic-to-media-outlets business anymore by making it way too expensive to do. Sure, with a scheme like this maybe some of the big platforms (Google News, Facebook) might suck it up and pay into the system (although, given what happened in Spain and Australia, when they each at various points refused to continue to do business there in the face of these sorts of schemes, perhaps they wouldn’t). But given all the gnashing and wailing, even at this hearing, that Google and Facebook have too much power, it would make sense to make sure that there could be other platforms and service competitors to Google and Facebook. The more the big ones are resented for driving traffic to other sites the more important it is that it be possible for other platforms and services to be able to exist to do it instead.

Yet that diversity in audience-facilitating services is exactly what compulsory licensing schemes like this one foreclose by inordinately exploding the cost of doing business for anyone who might want to build a platform or service capable of referring audiences to other sites. Those costs don’t just come from the money itself needed to pay into the licensing system but also the potentially massive compliance costs associated with not running afoul of such a scheme’s inevitably technical rules and also any defense costs involved with trying to avoid costly liability should someone accuse the service of not complying with those rules quite right. (As we wrote in our comment, the compulsory licensing system for music webcasters illustrates how hugely and deterrently expensive the costs of complying with a compulsory licensing systems like this proposed one can be.)

And deterring these platforms and services it isn’t going to do anything to make online journalism more profitable. For one thing, it in no way targets any of the reasons why it may not be profitable, to the extent that’s even the case. After all, if distant corporate owners would prefer to starve local newsrooms in favor of skimming off profits, that’s not a failure of copyright law that’s causing the decline of local news. It’s not even a failure of any particular journalistic profit model.

But to the extent that the news business is legitimately under strain, schemes like these don't alleviate that strain because it was not the absence of this sort of ancillary right that caused any of the underlying problems in the first place. More likely culprits hurting the news business are things such as media consolidation, corporate governance models that emphasize quick profits over good journalism, advertising models that are offensive to user privacy, poor site design that doesn’t retain readers' attention, and even paywalls and terrible site design that deliberately repel readership. It would make a lot more sense to correct these actual issues, or at least leave everyone free to innovate better monetization models if they are what’s needed for media outlets to flourish as the economically sustainable entities we want them to be. Instead a scheme like this just papers over the actual problems and by throwing more copyright at everything creates all sorts of chilling new ones that now everyone will have to cope with, no matter how contrary to their expressive or economic interests.

Because it WILL hurt them. It will suppress the reach of every media outlet's expression, and with it also their ability to profit from that reach. And it will hurt them this way without delivering any economic return, probably not to anyone but especially not to the smaller, independent outlets. Compulsory licensing systems are often profoundly inequitable, directing most of the money to big incumbent players and very little to the smaller creatives in the "longtail" of the money distribution chart. (Again, see the webcasting compulsory license for an example of this dynamic.) Furthermore, to the extent that some larger media outlets may envision doing special licensing deals with the big platforms like Google and Facebook, which they think they’ll be able to strike in the extortive shadow of a scheme like this, it would still leave everyone else, especially the smaller, independent media outlets without that bargaining power, in even more trouble than they are already in now.

Especially when such a scheme will meanwhile make it impossible to monetize audience attention that platforms and services are no longer legally able to freely deliver to them, unless these platforms and services spend a ton of money to comply with this scheme or be willing to risk infringement liability. By chilling these platforms and services it will destroy the Internet ecosystem these media outlets depend on to get that audience attention in the first place. And as a result it will diminish the diversity of independent journalistic voices, who will inevitably fade into unvisited obscurity. You almost couldn’t invent a better system to destroy independent media if you tried.

And that is in large part because, as it became clear in the hearing, this proposed scheme ultimately has little to do with actually supporting the economics of journalism writ large. Instead what emerged from the hearing was a perverse sense of entitlement, where some news outlets were arguing that if any audience-facilitating service happened to make money from the exercise of directing audience traffic to them, then this was somehow money that they were entitled to. This scheme only makes sense as a policy designed to pick the pocket of any business that happens to provide any audience facilitating service and is clearly built on a sense of resentment that anyone else might ever in any way profit from linking to someone else's expression, even when it still provides a symbiotic benefit to the media outlet behind the expression by helping it connect to its own audience. Not content to let this generous goose continue to lay all this economic opportunity on their doorstep, advocates of this scheme would rather use regulation like this to slaughter it in the misguided effort to grab up the imagined riches it greedily thinks such a scheme would magically reveal, irrespective how foolishly destructive such efforts would actually be to everyone.

Filed Under: ancillary copyright, copyright, copyright office, free speech, journalism, link tax, neighboring rights

Yet Another Move To Funnel Money To Big Copyright Companies, Not Struggling Creators

from the who-is-copyright-for dept

When modern copyright came into existence in 1710, it gave a monopoly to authors for just 14 years, with the option to extend it for another 14. Today, in most parts of the world, copyright term is the life of the creator, plus 70 years. That’s typically over a hundred years. The main rationale for this copyright ratchet – always increasing the duration of the monopoly, never reducing it – is that creators deserve to receive more benefit from their work. Of course, when copyright extends beyond their death, that argument is pretty ridiculous, since they don’t receive any benefit personally.

But the real scandal is not so much that creators’ grandchildren gain these windfalls – arguably something that grandpa and grandma might approve of. It’s that most of the benefit of copyright goes to the companies that creative people need to work with – the publishers, recording companies, film studios, etc.

One of the cleverest moves by the copyright industry was to claim to speak for the very people it exploits must brutally. This allows its lobbyists to paint a refusal to extend copyright, or to make its enforcement harsher, as spitting in the face of struggling artists. It’s a hard argument to counter, unless you know the facts: that few creators can make a living from copyright income alone. Meanwhile, copyright companies prosper mightily: some publishers enjoy 40% profit margins thanks to the creativity of others.

By claiming to represent artists, copyright companies can also justify setting up costly new organisations that will supposedly channel more money to creators. In fact, as later blog posts will reveal, collecting societies have a record of spending the money they receive on fat salaries and outrageous perks for the people who run them. In the end, very little goes to the artists they are supposed to serve.

EurActiv has a report about an interesting new copyright organization:

French publishers are close to launching a new body to collectively negotiate with online platforms, while the dispute with Google raises fundamental questions on how to monetise online content.

The president of the Institute for Digital Fundamental Rights (IDFR), Jean-Marie Cavada, told lawmakers in the French parliament that the set up of the new collective management organisation (CMO) will be completed in the next month.

The new body, which Cavada will lead, is to be in charge of negotiating with online platforms the remuneration of press publishers under the neighbouring right.

This “neighbouring right”, yet another extension of copyright, is being brought in as part of the EU’s Copyright Directive, passed two years ago. It’s interesting to note that the new organisation will be headed up by Jean-Marie Cavada, a French politician who played a leading role in getting the EU’s Copyright Directive passed. It’s a small world.

This “right” is also known as the “snippet tax”, because it basically requires online companies like Google to pay when even tiny excerpts of press materials appear on their sites. A moment’s reflection is enough to show that this is absurd: such snippets are effectively free advertising for publications, and they drive traffic to sites for free – something confirmed by research carried out in 2017 for the European Commission. If anything, press publishers should pay online companies like Facebook, Google and Twitter for the work they do.

But a clever campaign convinced EU lawmakers that the creators – in this case journalists – ought be paid more, and that Big Tech was somehow exploiting their work by displaying short excerpts in search results etc. And so the Copyright Directive was passed requiring online platforms to negotiate payments for the use of snippets, even though this has been a disaster in the two markets – Germany and Spain – where the approach has already been tried. As that 2017 European Commission report found:

After an initial rejection and chilling effect on traffic to their websites, German publishers agreed that news aggregators could take their content without remuneration. Spanish publishers did not have that option and suffered a decline in traffic.

What’s interesting about the French announcement is that its aim is “the remuneration of press publishers”. If you think that journalists working for those publishers will be seeing much or any of that remuneration in the form of extra wages, then I have a bridge you might like to acquire.

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

Originally posted to the absolutely wonderful new Walled Culture website.

Filed Under: collection societies, collective management organization, copyright, culture, france, jean-marie cavada, neighboring rights

French Government Says Google Must Pay French News Agencies For Sending Traffic Their Way

from the local-news-concerns-demand-the-right-to-fuck-themselves dept

European publishers just can't punish themselves enough, apparently. News agencies experiencing downturns related to their inability to take advantage of the miraculous communications platform that is the internet are turning to their governments, demanding something be done about Google and its [checks notes] insistence on sending search traffic their way.

Building off the dubious assertion of "neighbouring rights," the French government is now demanding Google pay French newspapers for the privilege of supplying them with additional readers.

In its latest crackdown on big tech, today the French Competition Authority has ordered Google to negotiate with French news organizations within the next three months to pay to reuse excerpts of news stories. That means Google will have to pay publishers for the headlines and snippets of stories that appear in Google News and even Google searches.

Note that it's an "order to negotiate," rather than the imposition of a tax. This is obviously in hopes of avoiding a repeat of Google's response to the snippet tax imposed in Spain. When the Spanish government declared local news agencies had an "inalienable right" to be paid by Google for snippets and headlines showing up in Google searches, the company shut down its news service in Spain. This resulted in news agencies asking for the thing they had just asked for to be rolled back. Losing Google's referral traffic obviously hurt them more than Google's previous uncompensated "use" of their headlines and content snippets.

Of course, Google still has the nuclear option available, negotiation orders notwithstanding. A negotiation can open with Google offering to shut things down completely if French news agencies aren't happy with the traffic Google's sending them. And it's a lot. The French Competition Authority knows this. And it knows its demands are placing a gun to news agencies' heads, rather than Google's. But it's making these demands anyway.

These practices are made possible by the dominant position that Google is likely to hold in the market of general search services. This position leads Google to bring significant traffic to the websites of publishers and news agencies. Thus, according to the data provided by the complainants relating to 32 press titles, and not disputed by Google, the search engines — and therefore Google for a large part — represent, according to the sites, between 26% and 90% of the redirected traffic to their pages. This traffic is also very important and crucial for publishers and news agencies who cannot afford to lose any share of their digital readership due to their economic difficulties.

This is the Competition Authority stating that it thinks Google shouldn't be able to pull the plug on local news services in response to snippet taxes. This condemnation of Google's actions in Spain comes bundled with some inadvertent transparency about the importance of Google's search engine to news agencies -- the same ones who believe it's Google that owes them money, rather than the other way around.

So, to avoid being nuked, the Competition Authority has laid down ground rules for "negotiations" that it hopes will keep Google from saying au revoir to its French Google News service.

Google must conduct negotiations within 3 months from the request to open negotiations from a press publisher or a news agency.

Neither the indexing, nor the classification, nor the presentation of the protected content taken up by Google on its services should in particular be affected by the negotiations.

Google will have to provide the Autorité with monthly reports on how it is complying with the decision.

But it won't really be a negotiation. The Competition Authority says there's only one acceptable outcome.

This injunction requires that the negotiations effectively result in a proposal for remuneration from Google.

This is dumb and highly unlikely to result in anything that makes French news agencies happy. They may be able to wrestle some money out of the company currently sending them traffic for free, but it's not going to turn their fortunes around. Nor is it likely to result in more traffic being sent their way.

Filed Under: aggregation, copyright directive, eu copyright directive, france, google news, google tax, neighboring rights, traffic
Companies: google

Germany Wants To Limit Memes And Mashups Derived From Press Publishers' Material To 128-by-128 Pixels In Resolution, And Three Seconds In Length

from the yeah,-that-sounds-totally-reasonable dept

Last month, Mike wrote about France's awful proposals for implementing the EU Copyright Directive's upload filter (originally known as Article 13, but Article 17 in the final version). Just as France was the most vocal proponent of this dangerous development, so Germany was the main driving force behind the ancillary copyright requirement, also known as the snippet or link tax. And like France, Germany has managed to make its proposed national implementation (original in German) of what was Article 11, now Article 15, even worse than the general framework handed down by the EU. The former Pirate Party MEP Julia Reda has a Twitter thread (in German) that picks out the main bad ideas. Under the German proposals, in general only "single words or very short extracts" of a press article can be quoted without a license. Specifically, free quotation is limited to:

the headline

a small-format preview image with a resolution of 128-by-128 pixels

a sequence of sounds, images or videos with a duration of up to three seconds

The proposal states that the new ancillary copyright does not apply to hyperlinks, or to "private or non-commercial use" of press publishers' materials by a single user. However, as we know from the tortured history of the Creative Commons "non-commercial" license, it is by no means clear what "non-commercial" means in practice. Press publishers are quite likely to insist that posting memes on YouTube, Facebook or Twitter -- all undoubtedly commercial in nature -- is not allowed in general under the EU Copyright Directive. We won't know until top EU courts rule on the details, which will take years. In the meantime, online services will doubtless prefer to err on the side of caution, keen to avoid the risk of heavy fines. It is likely they will configure their automated filters to block any use of press publishers' material that goes beyond the extremely restrictive limits listed above. Moreover, this will probably apply across the EU, not just in Germany, since setting up country-by-country upload filters is more expensive. Far easier to roll out the most restrictive rules across the whole region.

Before the new laws go into operation, people can submit their views to the German government at the email address

konsultation-urheberrecht@bmjv.bund.de

until 31 January 2020. Now might be a good time to remind the German lawmakers -- politely -- that supporters of the EU Copyright Directive insisted repeatedly that memes were "exempt" and "safe" under the new rules. Germany's unbalanced and extreme implementation shows that simply isn't true, and means that memes and mashups are most definitely under threat -- just as many of us warned.

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

Filed Under: article 11, article 15, copyright, eu copyright directive, germany, linking, memes, neighboring rights, press snippets

170 Years Of German Publishers Demanding Special Copyrights For The Press Because Of New Technology

from the crying-wolf dept

While much of the focus on the debate over the EU Copyright Directive has focused on the upload filters of Article 13, we should be equally worried about the snippet taxes of Article 11, which journalists have already made clear will be used to enrich publishers at the expense of actual journalism (that is, if it leads to any money at all -- since attempts to pass basically the same law in both Germany and Spain failed to produce the expected revenue windfall).

Former Icelandic Parliament member Asta Helgadottir recently put together quite an amazing Twitter thread detailing 170 years of German news publishers demanding special extra copyrights just for their industry -- each time insisting that without it, new technologies would kill journalism. You can also read the whole thing on a single page at Threader, but here's a (lightly edited) snippet:

1850: German Press publishers want #copyright of news because the newly arrived technology of the telegram is ruining their business model. It is rejected.

1886: German Press Publishers want news to be covered by copyright in the Berne convention. It is rejected, and copyright exception for news is established.

1908: German Press Publishers want to limit the possibility of reproduction of news by #copyright in the Berlin meeting for the Berne convention. It is rejected, as copyright is intended for inherently creative production.

1908: The Berlin conference thus reiterates their 1886 distinction of creative production and non-creative information and news with regards to #copyright protection.

1925: The conference of industrial property in the Hague rejects a proposal to make news industrial property, citing the decision of the Berne convention.

Seventy-five years of trying to make some intellectual property protection of news had failed. Trying to cover news by #copyright seemed to be hopeless.

1920s: The wireless technology threatens the established German Press Publishers. The fact that any owner of a wireless could listen to the news! Blasphemy.

1920s: "News Theft" explodes in Germany. The big press publishers are astonished by the fact that people are not willing to pay a hefty fee to buy their printed material.

1927: The Germans lobby for a resolution within League of Nations giving unpublished news #copyright protection, governmental news in the public domain, but published news were up to each national authority.

1928: The German ministry propose a law to protect news of the day and miscellaneous information with intellectual property at home. "vermischte Nachrichten tatsächlichen Inhalts und Tagesneuigkeiten"

1928: The emergence of the radio was one of the biggest reasons in the German's new News law as it undermined the news industry.

1928-1933: The debate of the new German press law continues but is never realized because the ascension of the Nazi government and new press control laws made it redundant.

It goes on from there into modern times, and the story is always the same. German publishers demanding special extra copyrights on factual reporting, and whining over and over again about new technology upsetting its business model and threatening the "future of journalism" or whatever. And every single time they were wrong. They didn't get the special copyrights and journalism survived (and in some cases thrived).

Given this background, why is it that EU bureaucrats are now suddenly taking those very same German publishers at their word when they insist that the internet is destroying their business, and they need these special copyrights (with the friendly name of "neighboring rights") that serve no purpose other than as a wealth transfer from internet companies to legacy publishers who have failed to innovate?

Filed Under: article 11, copyright, germany, journalism, neighboring rights, press

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

A Link Tax Won't Bring Back Journalists; It Will Do Even More Harm To Them

from the this-is-a-bad,-bad-idea dept

While most of the attention on the upcoming votes around the EU Copyright Directive is on the mandatory filters found in Article 13, we should be just as concerned about the link tax in Article 11. European publishers have been flat out lying about the proposal, which is little more than an attempt to just demand cash from Google and Facebook.

We've already explained why this is a bad idea. And it's not a theoretical issue either. This very same proposal has been tried in Germany and Spain and it failed miserably in both places, to the point of doing serious damage to traffic to news sites, without increasing revenue.

Unfortunately, it appears that at least some journalists don't want to hear about the facts. AFP's Baghdad Bureau Chief, Sammy Ketz has pieces in the Guardian and La Stampa (and possibly elsewhere) making an impassioned -- if somewhat confused -- plea in support of Article 11.

The reasoning is fuzzy, because there is no legitimate basis for Article 11, but Ketz basically says "there are fewer reporters these days, because news orgs are failing, but Google and Facebook have lots of money, so Article 11 is important, because they'll give us money." Really.

The media have endured a lot of pain for a long time before reacting to the financial drain, struggling with the consequences rather than the cause. They have laid off staff almost to the point of absurdity. Now they are demanding that their rights are respected so they can carry on reporting the news. They are simply asking that the sales revenue is shared with those who produce the content, whether they are artists or journalists. This is the meaning of “neighbouring rights”.

We can no longer swallow the lie spread by Google and Facebook that an EU directive on such rights would threaten people’s ability to access the internet for free. Free access to the web will endure because the internet giants, which now use editorial content for free, can reimburse the media without asking consumers to pay.

Difficult? Impossible? Not at all. Facebook made $16bn in profits in 2017 and Alphabet (Google’s parent company) $12.7bn. They simply have to pay their dues. That is how the media will survive and the internet titans will be contributing to the diversity and freedom of the press they claim to support.

Notice no other justification is given other than "the news business is struggling, the big companies have made lots of money, therefore, they should give that money to news orgs."

There are a number of problems with this -- ones you would think an experienced reporter like Ketz would have at least explored before publishing such a thing. First off, the experiments with similar proposals in Germany and Spain showed that it did not lead to news organizations getting more money. Instead, the reverse happened, and it harmed news organizations. Second, the clear implication of Ketz's articles is that Google and Facebook are somehow to blame for the problems news organizations have had. That's simply false. It ignores large technological shifts to an internet age in which we don't actually need every major newspaper sending reporters to cover the same things, because that's inefficient. It also ignores the massive failures by the big new organizations to actually change and adapt to the internet era.

I've pointed this out for over a decade now, but the news business has always been a "community" business. Historically, newspapers aggregated communities of local readers, and sold their attention to advertisers. Unfortunately, many publishers (and journalists) incorrectly thought they were in the "news" business, rather than the community business. But the internet opened up many new communities, and the ones that formed around old school news businesses flopped -- in part because those businesses did nothing to cultivate community. In fact, they often went the other direction with paywalls, intrusive advertising, pop-ups and the like to actively push the community away... to sites like Google and Facebook.

And now they want Google and Facebook to pay them, when they were the ones who failed, and Google and Facebook succeeded? How does that make sense at all?

Finally, Ketz completely brushes aside the very real concerns about how a link tax would fundamentally change the underpinnings of how the World Wide Web works (links) by falsely claiming that it's just a "lie spread by Google and Facebook." And he even misstates what he thinks the concern is. It's not that people wouldn't be able to "access the internet for free." It's that it would fundamentally change how linking can occur on the web, which is the single biggest feature to making the web work. If we're going to make that change, shouldn't we take some time to actually understand what it would do? Shouldn't we look at how this has already been tried and failed in two major European countries?

Apparently, to Ketz, that kind of reporting isn't necessary. Instead, he sees fewer reporters, he sees big tech companies making money, and he thinks that Article 11 magically changes both of those things. He's wrong about why there are fewer reporters, he's wrong about why internet companies have been successful and he's doubly wrong about how Article 11 should work.

Filed Under: article 11, copyright, eu copyright directive, journalism, link tax, linking, neighboring rights, sammy ketz
Companies: facebook, google

EU Publishers Freak Out Now That People Are Realizing Just How Fucked Up Their Link Tax Really Is

from the stop-the-link-tax dept

We recently had Julia Reda, a Member of the EU Parliament, on the podcast to discuss the horrible copyright directive proposal soon to be voted on by the Legal Affairs Committee in the EU Parliament. As we've been explaining, there are two very problematic parts to the copyright proposal: mandatory upload filters and the so-called "link tax." The link tax is also refered to as neighboring right or a snippet tax or a wide variety of similar things. But the crux of it is this: publishers are annoyed that Google and Facebook are successful, while they've been struggling. Ergo, the simplest solution is that Google and Facebook should be giving them money.

To make this happen, for a while now they've been dishonestly screaming that Google and Facebook are somehow unfairly "profiting" off of their work, because those sites link to online published news stories, often including snippets. The theory is that this somehow takes away from those own sites' ability to profit. This... makes no sense. First off, this effort drives valuable traffic to the websites of these publishers. This is obvious from the fact that all of the publishers whining about this (1) have not used robots.txt to block sites like Google from scraping them and (2) employ their own search engine optimization team to appear higher in search results, showing they value traffic driven by search. The "solution" to this made up "problem" then is to say that sites like Google or Facebook are violating a brand new "publisher's right" or "neighboring right" in sending these sites traffic without also paying them, and thus they want to force sites to get a license to send traffic.

Obviously, this goes against basically any reasonable conceptual understanding of how the internet works. And, this concept has been tested in Europe and failed. Germany tried it, and when Google responded by no longer including snippets for the publishers demanding payment, traffic to those publishers declined, and those publishers freaked out, eventually giving Google a free license. Spain then tried the same thing, but to avoid the "free license" issue, included as part of its law that you couldn't offer a free license (more or less making Creative Commons illegal, but that's a whole other issue). The end result there was Google News pulling out of Spain entirely, and traffic to publishers' sites dropping significantly.

Of course, the German (mainly) publishers can't stop pushing this idea, and thanks to some friends in the EU Commission and EU Parliament, it's quite close to becoming law in the EU. People are very vocally protesting and pointing out the problems with this, so the publishers are now trying to push back by putting out a ridiculous "Mythbuster" document that claims to clear up why everyone is wrong about the problems of a link tax. Let's take a look.

Fact #1: A publishers' right is NOT a Google/links tax

​The claim that the publishers' right is a threat to the link is the most misleading scare tactic of all from those who seek to undermine the case for a new publishers' right. There is a material and functional difference between you or me reading something we like and posting a link to Facebook and what commercial aggregators and search engines do. Opponents to the neighbouring right for press publishers like to suggest they're equivalent somehow.

Systematic scraping of content - which involves copying it 'en masse' into a private and permanently retained database, processing it and using extracts in commercial services such as search engines, for the purpose of making available text or images (or any other creative content for that matter) together with hyperlinks for commercial purposes is not equivalent to the activities of individuals browsing the web and posting links to things they are interested in.

This is... an interesting spin on things. Of course, it raises a pretty serious question: if there is a "material and functional difference" based on who does the linking... what is that actual difference, and how do we define it in law in a way that doesn't have serious negative consequences? But, more to the point, if it's such a huge problem, why don't these publishers just block the systematic scraping of content from the likes of Google until Google agrees to pay a license? This is not hard to do. It's actually incredibly easy. But the publishers don't want to do that.

And, really, even if we take the publishers' claims at face value, what they are actually saying is that internet search should require a license from every internet site it links to. That's... quite an astounding argument to make. It would have created a very, very different internet, and not a very good one.

Fact #2: Publishers will NOT use this right to block access to their content

Why would we do that? Popularity of our content has never been greater, particularly with the growth of smartphone readership and multiple access points to out content.

It is in publishers' interest to make their products available as widely as possible, on as many platforms as possible. But if big commercial operators continue to be allowed to reuse publishers' products and content without a licence or asking for authorisation, in the long run there will be less of them available. Even if some products are not available on all platforms users will still have many ways to discover and consumer those products, including on publishers' own websites!

First of all, there is not just no evidence to support the idea that there will be less publishers' product if Google and Facebook don't pay them, there is counter-evidence. There has been an incredible explosion in content creation in the past couple of decades, and much of it is driven by the massive decrease in distribution and discovery costs -- which in large part are due to things like search engines.

But a larger point on this one is that this "fact" is meaningless to the debate. I've not seen many people claiming that publishers will pull back their content. Indeed, part of the argument people are making is to wonder why they're not pulling back their content if search engines and aggregators really are so harmful. Again, it's not hard for them to do.

Data shows that news and press content is the most 'wanted' content on social networks and online platforms (Reuters Digital News Report 2015). When dealing with sometimes very large and powerful operators, it's quite right that publishers should be able to grant permissions in return for agreed conditions and to withold permission when agreement cannot be reached.

So, why not do that now? Again, it would be easy for a publisher to withhold content from Google and only put it back with a licensing agreement of some sort. They're not doing it. Instead, they're investing in SEO which suggests that they know that they actually get value from search. But now they want not just value, but also extra payments on top of that.

Fact 3: This right is NOT unique to publishers; Publishers are NOT asking for special treatment

A publishers' right will be similar to the related rights already enjoyed by broadcasters, music and film producers, whose finished works are protected in their entirety. This is what press publishers are asking for, too.

Since 1991 computer programs have benefited from full copyright protection at EU level. Furthermore, it's the companies, whose employees create these programs, which own all the rights to the programs and who have full exclusive control over how they are managed and enforced, just like film producers or broadcasters.

Whoo boy. Someone could write an entire PhD thesis on just how wrong this is. What the publishers are demanding goes way beyond copyright. Broadcasters, musicians and film producers do get copyright -- but so do publishers. Publishers are now asking for something in addition. They already have copyright protection in their works. Now they're asking for a separate right to link to their content (and, depending on interpretations) to include a snippet of what's in the link.

Fact 4: This is NOT just about Google

It's a sad fact of the internet that there are many companies, large and small, old and new that systematically scrape and re-publish press content for commercial purposes without permission or payment.

Why is this sad? This is what makes the internet useful. And they're not "republishing" press content. They're LINKING TO YOU AND DRIVING YOU TRAFFIC. That's a good thing. If you actually spent 20% of what you've spent over the years lobbying for this awful idea on figuring out how to take advantage of the free traffic that these sites send you, you'd already be doing much better. Instead, you do a classic rent seeking move to demand from the government that which you failed to accomplish as a business.

And, more the point: if this does go into effect, Google may be able to afford it, but the others won't. So in the end, it will be about them. Because you'll have systematically removed everyone else from the market.

Fact 5: Small publishers will NOT be negatively impacted

Currently, even large media corporations are not in the position to negotiate for a fair settlement with dominant players. The hope is that the publishers' right might begin to address this asymmetry of power and make it easier for all publishers - whatever their size - to monetise and share fairly in the value of the content in the future if they would like to.

​As the law currently stands, in order to defend their rights publishers need to attempt to track all uses of their content across the whole internet, issue notices in respect of each individual infringing use they discover, and, frequently, prove the chain of title for tens of thousands of articles and photographs. This is daunting, extremely costly, time consuming and practically impossible except in a small number of cases. The outcome is also rarely better than a takedown of the infringing content; damages and costs are rare.

Well, first off, we have actual evidence of this already in Spain, where studies showed that it DID disproportionately hurt small publishers. This is also why small publishers have come out against your dumb proposal. So, it's great for you to say it will have no impact, but you have no evidence to support that position, and tons of evidence against it. It seems, yet again, that your fact is, in fact, a myth.

Fact 6: Innovation will still be possible - and more accessible!

A publishers' right will help open the way for more innovation. Clarifying the law at EU level will improve press publishers' bargaining position when it comes to third parties' use of their works, and more legal certainty over their rights will help encourage investment and increase the possibilities for publishers of all sizes across Europe to develop new product offerings, to the benefit of their readers.

This isn't "clarifying." This is creating an entirely new right that by your own actions (SEO, failing to use robots.txt) you show is unnecessary. This isn't about "more legal certainty." This is about massively putting your fingers on the scale, such that more successful businesses need to pay you for sending you valuable traffic.

There's a myth that a liberal copyright regime is necessary to encourage innovation, but this is not true. Imagine a situation where tech companies allow others to use their patented or trademarked products or services without authorization or payment. Tech companies fiercely defend and protect their own intellectual property. Why should it be any different when it comes to protecting copyright?

This is hilarious. First, there is tons of evidence to support the idea that a more "liberal copyright regime" helps with innovation. But the really nonsense claim is that this is somehow hypocritical of tech. Now, you can certainly point to some tech companies that over-aggressively enforce various aspects of their patents and trademarks, but the more innovative ones are not exactly known for it. Google is not going out and suing others over patents. Companies like Tesla have even freed up all their patents. The tech industry tends to view patents and trademarks as more of a necessary evil, rather than something they need to "protect" their work. So, no they don't "fiercely defend and protect." This whole claim is just nonsense from some European publishers who don't seem to know what they're talking about.

Fact 7: Users will NOT be criminalised and the internet will NOT be broken

Nothing we are asking for would affect the way that our readers access our content or share links on social media or via apps and email to friends and family. Nor will it change the contractual arrangements with journalists, photographers and other contributors.

Bullshit. You just said that you want large companies to pay up. That will absolutely, by definition, change how readers share content and links on social media. The platforms that are doing this will suddenly have to get licenses, meaning they'd likely block plenty of sharing on content they don't have such a license for. And some, a la Google News in Spain, may drop out altogether.

The only people who will notice any changes at all are those who today free-ride for commercial gain on publishers' investments without permission or payment. Who are they? Well, not the readers, authors or individual users, but commercial organisations whose business models and significant economic benefits depend on the use of publishers' journalistically-produced content.

So... EU Publishers: here's a question. If you consider Google sending you free traffic as "free riding," um... aren't you "free riding" on the traffic Google sends you for free? Isn't this line of reasoning going to get you into deep shit when someone spins around and asks why you're free riding on Google and Facebook and not paying them for the traffic they send you? After all, you're getting commercial gain from Google and Facebook's investment without permission or payment.

Fact 8: An independent, free press that supports diversity and upholds democracy CANNOT survive indefinitely without generating revenues

A free and independent press can only exist if there is adequate revenue to pay journalists, photographers and freelancers and to finance their training and security. Today, the prospect is increasingly reduced, due to declining print revenues that have not been matched by digital despite increased levels of readership. The reasons for this are complex, but in a nutshell large search engines and other distributors make publishers' content available for free to the user without re-investing in its production while making it difficult for publishers to charge users directly for the same content.

This is true! Finally! But what does it have to do with getting this brand new right? Again, the experiments with it in Germany and Spain have not led to any new revenue for publishers. So why do you naturally assume that it will magically happen this time? The decline of print revenues is a big deal. And it is a huge challenge for publishers. But why do you assume that the answer is having governments force other companies to pay you? What a weird approach.

The loss of advertising share is also significant, as much of this now goes directly to search and social networks, which attract larger user groups that include users who are reading publishers' content on their platforms. Finally, unauthorised large-scale re-use of publishers' content and a lack of legal clarity that would enable enforcement against large-scale infringements is a growing problem that needs reversing.

The loss of advertising share... basically sounds like admission that you guys suck at your jobs. And you want a government bailout. And, again, they're not "re-using" your content. They're sending you traffic. Traffic that you could monetize. If you were good at your jobs and not crying to Brussels.

Fact 9: Consumers will still be able to find news and content on different platforms

Publishers actively make their content available on all platforms, accessible on any device of choice. They recognize that consumers benefit from easy access to their content wherever they happen to be, whether this be through publishers' own websites, or on social media or search pages where multiple sources of content are aggregated. Not only do consumers benefit, but so do the hosts of publishers' content who derive value and real benefits through increased traffic, advertising revenues or in some cases subscription fees.

What? I mean, sure, publishers will make their content available if they are getting paid for the links. That's the whole freaking issue. This would mandate fees for those links, and of course then the publishers will make the content available -- they want to get paid. The problem is that many platforms won't post links to their content any more because it won't be cost effective.

Publishers recognise that search and social media platforms are important partners for news organisations and that their traffic brings benefits, although not on the exaggerated scale claimed by some. The current system does not recognise the value third parties get from publishers' content. It is unsustainable for publishers to continue funding high-quality professional journalism without a fair share of the value others derive from their content.

Their traffic brings benefits... which is why we need to get them to also pay us? How does that make any sense?

Fact 10: Publishers are NOT just trying to support 'old' business models

Publishers have made an important transition from analogue to digital over the past decade with high degrees of innovation and enormous growth in audience and popularity. They have embraced the digital age and count as many technical staff as editorial.

You do this after paragraph upon paragraph talking about how you can't survive without this tax on links. Which means you haven't actually embraced digital. It means you're demanding that those who actually have embraced digital subsidize your failures.

The publishers' arguments here are not just weak, they're nonsensical. There is no way to understand the link tax "publishers' rights" proposal as anything other than a massive subsidy from successful internet companies to publishers who failed to adapt to a changing marketplace. It's sad that the EU seems to think that's an appropriate response, and that the powers that be don't seem to care about the existing evidence of how such laws have completely flopped in the past.

This is not evidence-based policy-making. It is corruption. It is corruption in bowing to the will of a few large publishers who have failed to innovate successfully, and are now going to harm the entire internet in response. The EU Parliament should not allow this to happen. If you agree that this is crazy, go check out SaveTheLink.org, which has more details.

Filed Under: copyright, eu, link tax, neighboring rights, publishers

EU Parliament Members Play Hardball On Terrible Copyright Policies, Article Highlighting Sketchy Tactics Magically Disappears

from the not-cool dept

Last week we wrote about how the new proposal for the EU Copyright Directive has some really destructive ideas in it, and is very close to becoming official. Last week (on GDPR day) the various EU member states basically gave the proposal their blessing, and the only thing left is that the Legal Affairs Committee in the EU Parliament who will vote on June 20th (or possibly the 21st). Many, many experts have raised serious concerns about elements of the proposal -- including the link tax and the mandatory filters for content, both of which will create tremendous problems for innovation and speech online. We'll have even more on this next week, but for now, it's worth looking at just how messed up the lobbying process has gone as supporters of the bill (including big publishers and legacy copyright industries) want to get it across the finish line, apparently not caring very much how they do so.

Earlier this week, MEP Julia Reda alerted the world to an article in EU Today, which described how the Christian Democratic Union of Germany (CDU) was using another party, the EPP, to basically shake down other MEPs to get them to vote, saying that if they didn't do so, they will effectively be stripped of all power, blocked from being given reports or parliamentary positions. At one point the article said the following:

But the German EPP party has been accused of “openly lobbying” on behalf of Axel Springer by contacting members of the legal affairs committee and urging them to back the proposals in a vote by the committee on 20 and 21 June.

It is claimed that some committee members have been told of “possible repercussions” if they fail to support the proposal.

They have allegedly been told that to “stay away” from the meeting if they intend to reject the new law, with substitute members, who are more sympathetic to the plans, lined up to vote instead.

British MEP Dan Dalton, a member of the Civil Liberties, Justice and Home Affairs committee (LIBE), said: “I am not surprised by this, given how controversial this issue is, even within the EPP. But it doesn’t reflect well on the EPP that they want to silence their own members on an issue as controversial as this.” Dalton, a member of the European Conservatives and Reformists Group and who opposes the so-called “neighbouring right” in the directive, added, “By resorting to these methods it only further demonstrates that there are huge concerns throughout the European parliament, including within the EPP with the neighbouring right.

In the screenshot that Julia posted, there are other details:

If you can't see that, it says:

A member of the JURI committee, who said he did not wish to be named, said, "I know that several members of our committee have come under huge pressure to vote in favour of this particular proposal. The German CDU, via its EPP affiliate, has been reportedly pressuring them to vote what you might call the 'right' way. As part of their efforts to convince them to do this there have been reports of threats of members not being allocated reports and parliamentary positions if, basically, they don't do as they are told. The alleged involvement of the German publishers gives cause for some concern.

He added, "I understand how things work in this parliament and lobbying is part and parcel of the EU decision making process but when it comes to 'threats and warnings' that is crossing a line."

That part of the article is not in the version I see in the Internet Archive, but rather in Reda's tweeted screenshot. However, the Google cache version I currently see includes the quote that Reda screenshotted. You can also see it on Archive.Today.

And if you're wondering why I have to point to the Internet Archive version, the Archive Today version, and the Google Cache version, it's because EU Today magically decided to entirely memory hole the original article. It does not exist. You don't even get a typical 404 page, but rather the following error message: "Unable to find the template "_layout" in "404" at line 19." Someone was apparently in quite a rush to make that article disappear.

Instead, EU Today published a "similar" article by the same reporter, Martin Banks. Incredibly, the new version, is... well... quite different. It notes in one sentence that "German publishers have strenuously denied knowledge of members being put under any undue pressure on the issue by the EPP" which is an odd statement in the first place, because why would German publishers know what's happening in the EU unless... they were involved in it. But then the EU Today piece gets even odder. Rather than following up on any of what it originally reported, and then memory holed, instead it flips the script and claims that the real heavy handed lobbying is coming from those darn internet companies:

Rather, it is claimed that what lobbying has taken place has been by the "big internet players" with one MEP saying, "Much pressure is being put on MEPs but this is coming from big internet players against the neighbouring rights for the press publishers."

Later, the article posts an entire statement from the German Press Publishers Association, which is pushing for the link tax, and expresses its support with the following utter nonsense:

A spokesman for the German Press Publishers Association also told this website they were unaware of any such pressure being applied.

“We got the impression that there is a very lively and open discussion in the Committee.We support the draft of the European Commission and have welcomed the recent decision in the Council,” added the spokesman.

The publishers go on to state, “To remain competitive and independently financed, Europe’s publishers need to be able to compete on all platforms.

“Whilst publishers have successfully transitioned from analogue to digital, they will only reach their potential with an appropriate and updated legal framework that addresses the complexities of online copyright and licensing and gives publishers the legal resource to protect their investment in the original, professional content that underpins the freedom of the press and democracy.”

They add, "What publishers need is a “publishers’ right” granting publishers the legal protection and clarity already afforded to broadcasters and film and music producers."

Of course this is laughable. We've already seen how this has played out in practice in both Germany (where it flopped and where publishers sheepishly agreed to give a free license to Google after Google stopped including snippets), and in Spain where it did massive damage to independent news providers.

There is no need for this law and basically everyone other than giant legacy publishers are against the link tax, recognizing that it would harm just about everyone else, including everyday internet users, smaller publishers and smaller internet platforms (the big guys can pay). Of course, maybe that's the goal of the big publishers: to harm smaller competitors.

Still, it is quite incredible the EU Today posted details of thuggish threats trying to pressure MEPs on the Legal Affairs Committee to support this, and then disappeared all of those quotes, and appears to have replaced them with a new article that accuses the other side of lobbying too aggressively, though the only evidence given is publishers saying this and then an MEP complaining about receiving some emails. Emails lobbying for a position are quite different than threatening to strip elected officials of power if they don't vote for what is nothing more than a hand-out to a few large publishers.

I wanted to ask EU Today why they did this, but when I click on their "contact us" link it just takes me back to the top of the page. I was also looking for some background on EU Today, and found that their "about us" link also just returned me to the top of the page. The same is true for the privacy policy of the site, which may create some issues with the GDPR, but I guess that's a whole other issue...

Filed Under: ancillary rights, copyright, copyright directive, eu, eu parliament, link tax, neighboring rights

Push Resumes For An EU Google Tax, With The Bulgarian Government Leading The Way

from the bad-ideas-never-die dept

When an idea fails, legislators resurrect it. The problem must not be with the idea, they reason. It must be with the implementation. So it goes in Europe, where the Bulgarian government is trying to push an idea that has demonstrably failed elsewhere on the continent.

Should the EU introduce an extra copyright for news sites, restricting how we can share news online? The controversy around this plan continues to brew – this time in the Council, where the member state governments are trying to find a consensus.

[...]

The Bulgarian Council Presidency is pushing what it calls a new compromise, instead of the choice of two options that their Estonian predecessors offered.

But upon closer investigation, the “compromise” looks mighty familiar: With exceptions for very short snippets and non-commercial use by individuals, as well as a shorter protection term than the Commission wanted, it looks much like the current German “ancillary copyright”, which almost all experts agree has been an abject failure.

The failure of snippet taxes/Google taxes is well documented, but never seems to deter further legislative efforts in the same direction. Google reacted to the initiative by dropping snippets from German news agencies, a move that produced a noticeable drop in traffic. German publishers called it "blackmail," but the simplest way to comply with bad laws is to opt out. Similar things happened in Spain with its snippet tax. Google nuked its local Google News service, resulting in affected publishers demanding the government force Google to re-open the service and start sending them traffic/money.

This push in the EU Commission for a snippet tax deliberately ignores research showing link taxes don't work, harm publishers, and are opposed by many of the journalists who would supposedly benefit from it. This is more than cherry-picking facts to support a Google tax. Pirate Party EU Parliament member Julia Reda (who wrote the post quoted above) previously uncovered reports the Commission tried to bury, including one that showed news aggregation services like Google News were a net benefit for listed publications.

At this point, it looks as though some form of snippet tax will eventually become EU law. Only half of the member countries oppose snippet taxes, and only a few of those are actively fighting the proposal. If it does become law, it won't work out the way publishers believe it will. Instead, it will harm smaller publishers and smaller aggregators, resulting in a consolidation of power for the largest publishers and platforms. The EU has no leverage in this battle. Google won't hang around for long if the situation is unprofitable and publishers will have to settle for taxing Yahoo, Bing, etc. for whatever traffic these search engines manage to send their way.

Filed Under: aggregators, bad ideas, bulgaria, copyright, eu, google tax, link tax, neighboring rights, snippet tax