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

from the and-a-pony dept

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

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

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

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

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

The Commission was requested to follow these guidelines indicated by the Rapporteur: Platforms should follow high standards of duty of care;

Cooperation should not be unidirectional;

Non infringing content should remain on the platform online;

Automatic blocking, albeit non forbidden, should be avoided as much as possible

Existing measures should not be excluded

Platforms should not always be released from liability by merely applying content identification measures

Rightholders should not be in a worse position than they are currently. In this context the audiovisual sector was singled out. On this basis, the following ideas, which are based on a logical grouping of the above guidelines, are outlined for the consideration of the co-legislators:

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

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

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

High standard of duty of care and bilateral cooperation (1 + 2) Online content sharing service providers, as defined in the directive, are considered to communicate to the public and as such need to obtain licences from the relevant rightholders. Where no licences are granted, online content sharing service providers and rightholders should cooperate in good faith to prevent the availability of protected content online. Cooperation should take place according to appropriate standards of professional diligence, which ought to take into account the size of the service, the number and type of works or other subject matter uploaded by users, the potential economic harm caused to rightholders, the availability of suitable and effective technologies and their cost for service providers. In practice, this means that the standards of cooperation should be particularly high for high value content. Cooperation should not lead to a general monitoring obligation as defined under the e-Commerce Directive.

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

Rightholders should provide content sharing service providers with specific information (e.g. metadata) allowing identification of their content. The cooperation could include content identification measures (e.g. for high value content) but should not prevent other forms of cooperation if agreed by the parties (e.g. ex post content moderation for low value content, see also letter B). When unauthorised content becomes available on their websites, content sharing service providers would in general not be liable if they have cooperated in good faith according to the relevant standards of professional diligence. However, within an adequate framework to ensure legal certainty, when despite such cooperation the availability of content online has caused significant economic harm to rightholders the Directive could consider the provider liable in any event, but at a reduced level taking into account the good faith of the provider. Alternatively, the Directive could allow rightholders to claim restitution of the benefits appropriated by the providers (e.g. using unjust enrichment claims under national law) (see point C below).

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

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

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

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

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

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

Non infringing content should remain online and automatic blocking to be avoided as much as possible (3+4) Content that does not infringe copyright, for example because it is covered by exceptions, should stay on the services’ websites. In addition, the co-legislators could provide that minor uses of content by amateur uploaders should not be automatically blocked (in the context of the cooperation and professional diligence referred to under A) nor trigger the liability of the uploader. This should be without prejudice to the remedies under point C and the rules on liability of the providers and cooperation under A. The need to allow legitimate content to remain available, should be strengthened through a robust redress mechanism which should ensure that users can contest measures taken against their legitimate uploads. The Commission already provided possible suggestions to the co-legislators which are currently under discussions in the trilogue process.

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

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

Rightholders should keep benefiting from existing measures; and platforms not released from liability by merely applying content identification technologies. Rightholders, notably audiovisual sector, not worse off (5+6+7) Rightholders should in any event retain the ability to request removal of infringing content from the websites of the content sharing services. Building on and complementing the current ecommerce rules, rightholders should be allowed to request that unauthorised content is expeditiously removed and that best efforts are made to ensure that it stays down. As indicated in A, the co-legislators may provide for an additional safeguard for rightholders when despite the good faith cooperation the availability of content online causes significant economic harm to them.

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

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

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

This leaves me with two key takeaways:

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

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

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