Copyright Industry Lobbyists Can't Even Get Their Story Straight On Article 13: Does It Expand Copyright Or Keep It The Same?

from the get-your-act-together dept

Last week, we pointed out that while you might hear copyright industry lobbyists and EU regulators repeatedly insisting that all of the concerns being raised about the EU Copyright Directive are being driven by "big tech" lobbying, the actual data shows that over 80% of the lobbying effort has come from legacy copyright industries, pushing really, really hard for a massive expansion in copyright law that will fundamentally change how the internet works (and not in a good way). It's become clear, watching these lobbyists in action, that they will say absolutely anything, no matter how ridiculous, if they think it will lead to getting their beloved Article 13, where the sole purpose is to fundamentally change the internet from a communications medium, in which anyone can share anything they create, to a fully broadcast medium, where everything must first be licensed. Obviously, the legacy copyright companies want this badly, because they're in the business of licensing. And, if everyone suddenly needs to get licenses, suddenly they become relevant again.

But, as we mentioned last week, those same lobbyists are freaking out that EU regulators might possibly add a "safe harbor" to Article 13. Even with a safe harbor, Article 13 is a problem, but without a safe harbor it's a disaster. The "safe harbor" would just mean that if internet companies follow specific steps to rid their platforms of infringing works, then they can't get sued. But the copyright players badly want to be able to sue, because that's how they rid the internet of this amateur competition -- by making it too costly to continue to host.

But in one of the letters sent last week, by the movie and sports industries, they made an odd argument against the safe harbor. Hilariously, they claim that a safe harbor would change copyright law, and the purpose of Article 13 is to codify existing case law. Really:

The initial goal of Article 13 was to codify the existing case-law in a way that would enable right holders to better control the exploitation of their content vis a vis certain OCSSPs which currently wrongfully claim they benefit from the liability privilege of Article 14 ECD. Unfortunately, the Value Gap provision has mutated in such a way that it now creates a new liability privilege for big platforms and therefore even further strengthens the role of OCSSPs to the direct detriment of rightholders.

First of all, this is a completely laughable attempt to rewrite history. The E-Commerce Directive's Article 14 contains safe harbors that have always been held to apply to internet service providers. But, still, it's odd to see them claiming that Article 13 isn't supposed to do anything new.

Apparently, however, this new message didn't make it to all the lobbyists working on this thing (either that, or they just don't care one bit if they give conflicting messages, as long as they get what they want). Neil Turkewitz, a former RIAA VP, who was a huge part of the RIAA push to dismantle the internet bit by bit over the past few decades, has written up some crazy rant about Article 13, where he makes exactly the opposite argument that his buddies in the film and TV industries were making. Rather than merely codifying existing law, Turkewitz wants you to know that Article 13 is a wonderful new idea:

Articles 11 and 13 are designed to create markets where none presently exist, or are marred by unfair competition — to breathe life into property interests that are themselves protected under international law.

This is obviously crazy as well and has no basis in reality. There is no "unfair competition." What Neil and his buddies consider "unfair competition" is any competition in which the deck isn't stacked in massive favor for the record labels. Anything that allows an open internet, where there is competition and artists can (*gasp*) go direct to the audiences they want, and explore new business models, is an abomination that must be destroyed. And the best way is to call it "unfair competition."

Still, these two arguments can't go together. Is Article 13 codifying existing law, as the MPA says? Or is it creating new markets where none presently exist, as per the ex(?) RIAA guy?

Once again, these guys are showing why you can't trust a single word that they say. They will say absolutely anything to get their way and fundamentally take away the open internet.

On a separate note, Turkewitz's laughable article gets more laughable the more you read. I particularly enjoy this part:

But regardless on one’s views of existing safe harbors, one thing is clear — Congress and the Administration should refrain from locking in what is essentially the beta version of internet governance — rules adopted at the dawn of the commercial internet.

If you know anything about the past three decades that Turkewitz spent at the RIAA, one of his focuses was doing exactly what he's now complaining should not be done. He was a key player in pushing the worst aspects of copyright law into every international trade agreement, locking in bad ideas such that they couldn't be changed -- in particular the anti-circumvention provisions of the DMCA. For him to now whine about an attempt to use the same mechanisms to include the "protective" elements for user-rights and free speech in the form of the safe harbors of the DMCA is particularly bold. It's amazing anyone takes him seriously.

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Filed Under: article 13, copyright, intermediary liability, intermediary liability protections, neil turkewitz, safe harbors