EU Parliament's Legislative Affairs Committee Is Now Misleading Members Of Parliament In Effort To Fundamentally Alter The Internet

from the misinformation-at-work dept

We've had a bunch of posts today alone (and in the past few weeks) about the absolutely terrible EU Copyright Directive that the wider EU Parliament will vote on this Thursday. The version that will receive a vote on Thursday was only just released and it shows that the legislative affairs committee, JURI, that voted for it a few weeks ago actually took a really bad proposal and made it significantly worse. As more and more people have woken up to this fact and started calling it out, it appears that JURI is going on the offensive. And I mean "offensive" in both definitions of the word.

JURI sent sent the attached document to Members of Parliament, trying to defend its position on Articles 11 and 13. The email it sent reads as follows:

Dear Colleagues, Before Thursday's vote on the mandate of the copyright file, you will find attached an update on the content of the text adopted in JURI, accompanied, with regard to explanations, by the text passages of the corresponding compromises. This to try to answer, once again, the massive disinformation campaign that we are experiencing. Thank you for taking note. Kind regards,

There is only one "massive disinformation" campaign going on, and it's by those in favor of Articles 11 and 13, and JURI is a key player in it, judging from this complete nonsense document. Let's dig in:

ON THE ARTICLE 11 The paragraph 1 of the article makes it clear that the remuneration of press publishers is only an option: “1.Member states shall provide publishers of press publications with the rights provided for in article 2 and article 3(2) of directive 2001/29/ec so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.” This gives a lot of flexibility to the application of this provision.

Actually, it does not. Remember the original point of the EU Copyright Directive was to "harmonize" copyright laws across the EU, because trying to comply with many different copyright laws was harming the ability to produce and release content in the EU. Under the terms of Article 11, all member states now need ("shall provide") to create a brand new right for publishers. And while the directive gives "a lot of flexibility," that's because (despite requests from many!), the drafters decided to ignore pleas to give some direction on what this right would apply to. It could have only applied to works covered by copyright -- which would require more than a minimal snippet and also would require an element of creativity. But the EU Commission and JURI, bizarrely, refused to include that. Instead, they leave it up to the member states to implement as they want. That "flexibility" means that any member state can put a snippet tax on the use of a single word.

And, then, because the whole point of the freaking directive was to allow a harmonization so that works could be published across the EU, whichever EU country comes up with the most ridiculous, and most limiting publishers' rights will "win" and everyone will have to live down to that standard in order to avoid infringing on this new right. So that "flexibility" actually argues against JURI here, because it's a large part of what makes the snippet/link tax so incredibly dangerous. Without putting any real effort towards protecting the rights of users, but allowing the flexibility for states to create rights that harm the public, it pretty much guarantees that result.

Moreover, it is important to note that Member States shall ensure that authors receive an appropriate share of the additional revenues that press publishers receive for the use of a press publication by information society service providers.

I'm curious if JURI has done any research on how corrupt Collection Societies have been over time. The idea that the money will flow from publishers to authors is laughable. For years we've been collecting stories of how collection societies -- often "controlled" by large legacy industry players -- collect lots of money for copyright licenses, but magically seem to have trouble doling it out to actual creators. Creating a new such collection society and a new right on top of existing rights doesn't change any of that.

In order to answer those who are worried about consequences on social networks: NO, hyperlinks are not included in this article, and it is very clear in the text: “2a. The rights referred to in paragraph 1 shall not extend to acts of hyperlinking.”

We already discussed the whole addition of the "shall not extend to acts of hyperlinking" text this morning. It's meaningless. The rest of the Article makes it clear that states can implement this in a way that will clearly impact hyperlinks, in part because most hyperlinks contain a snippet. And, again, JURI disregarded requests by many to make it clear that snippets should have to be more than just a single word or phrase -- thus leaving that open.

NO, there will be no impact on individual users since private and non - commercial uses of press publications are not covered by the article. “1a. The rights referred to in paragraph 1 shall not prevent legitimate private and non-commercial use of press publications by individual users.”

This is the most ridiculous part. Most "legitimate private and non-commercial" users of press publications are using platforms to share links. So, of course it will impact them. Even beyond that, it will clearly limit what news and information people are able to find online. Remember, Spain implemented this kind of snippet tax, and a comprehensive study showed that it significantly harmed small publishers. So, uh, does JURI think it can just ignore the evidence? It certainly appears to be the case.

In addition, the right established by paragraph 1 of Article 11 only applies to press publications used by “information society service providers, which are defined in the text, and not to individual users that are excluded in the paragraph 1 (a) of Article 11. “1.Member states shall provide publishers of press publications with the rights provided for in article 2 and article 3(2) of directive 2001/29/ec so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.” “1a. The rights referred to in paragraph 1 shall not prevent legitimate private and non-commercial use of press publications by individual users.”

Same exact point I made above. The fact that it doesn't apply directly to end users is meaningless, since those end users pretty much all rely on the platforms -- the "information society service providers" under the directive -- that the law will impact. Who actually takes JURI seriously here?

ON THE ARTICLE 13 AND ARTICLE 2 (DEFINITIONS) It aims to make platforms accountable, but not all platforms. Article 13 needs to be seen in conjunction with article 2 of the draft directive. “Article 2 (4a) ‘online content sharing service provider’ means a provider of an information society service one of the main purposes of which is to store and give access to the public to copyright protected works or other protected subject-matter uploaded by its users, which the service optimises. “ “Services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all concerned rightholders, such as educational or scientific repositories, should not be considered online content sharing service providers within the meaning of this directive. Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this directive.” Only those that are active, so that optimize the content posted online.

I've seen a few people -- including MEP Axel Voss, who is responsible for this monstrosity -- keep making this point, and it's so ridiculous as to make me question if any of these people have ever actually used the internet. This definition will absolutely apply to a ton of online platforms. That they carved out a few, very narrow and very specific exceptions, after a few organizations complained, does not mean that Article 13 is not a bulldozer coming for a large part of the open internet.

Part of what makes the internet valuable is that it's a communications medium, by which anyone can communicate with anyone. That's the wonder of user-generated content platforms -- and all of those will pretty much qualify under Article 13, because if they accept input from users, that input is going to be covered by copyright. Even the idea that "cloud services" are carved out is laughable, because note the caveat on those: it only applies if they "do not provide direct access to the public." Can you name a cloud service provider that does not include a "share" button? That's what makes the cloud valuable. If it's just to store my personal stuff, why not just park a drive in my closet?

Also, no general filtering measures are included in Article 13. The text even emphasizes that this practice is prohibited: 1.b members states shall ensure that the implementation of such measures shall be proportionate and strike a balance between the fundamental rights of users and rightholders and shall in accordance with article 15 of directive 2000/31/ec, where applicable not impose a general obligation on online content sharing service providers to monitor the information which they transmit or store.”

This is the "plausible deniability" clause similar to Article 11's "but this doesn't apply to hyperlinks" nonsense. You can say that article 13 doesn't create a requirement for upload filters all you want, but when there's literally no conceivable way to suggest you're complying without installing an upload filter, it's a meaningless assertion. Besides, the very next claim completely debunks this one:

However, active platforms need to put in place measures in cooperation with rightholders when they alert platforms about the public availability of infringing content. 1a. Member states shall ensure that the online content sharing service providers referred to in the previous sub-paragraphs shall apply the above mentioned measures based on the relevant information provided by rightholders.”

So... there are no mandatory upload filters... but "active platforms need to put in place measures for dealing with rightsholders. That... certainly sounds like a requirement for upload filters.

Finally, Article 13 will not lead to censorship of the entire internet. It does not threaten freedom of expression or fundamental rights.

Who are you going to believe on this one? An EU Parliamentary committee that has already shown a fundamental inability to understand how the internet works... or David Kaye, the UN's special rapporteur for freedom of expression, who wrote JURI a long and detailed report explaining exactly how Article 13 threatens freedom of expression and fundamental rights? I'm going to have to side with the UN's free speech expert on that one.

The meme, mash-up, the gifs are already allowed and included in an existing exception and will still be after the adoption of this directive (article 5, directive 2001/29/EC 3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: (k) use for the purpose of caricature, parody or pastiche

I'd like to highlight an important sneaky bit here. Note how earlier, all of the stuff about online platforms used the word "shall" for implementing these upload filters? Now look at the text JURI highlights here claiming that there are "existing exceptions." See the different word? It's not "shall," it's "may provide." May is different than shall. And not every EU state has provided for such user rights.

But there's a larger point here. We all know that determining what is considered non-infringing as "caricature, parody or pastiche" is not something that is done easily. It's certainly not something done by an algorithm. In many cases it takes years long trials and appeals, with lots of disagreement. Yet, the text of Article 13, and apparently the geniuses on JURI seem to think that online platforms can put in place effective measures to make those determinations (1) in a split second and (2) without any chance of getting it wrong and (3) without a likelihood of taking down protected, non-infringing speech.

If whoever wrote up this nonsense for JURI actually believes that, then let them create such a filter, because it doesn't -- and cannot -- exist.

A provision was even added to ensure a complete protection of users’ data, even though GDPR naturally applies to all legislation: 2.2 Moreover, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation, the measures referred to in paragraph 1 should not require the identification of individual users and the processing of their personal data.

Again, this shows a rather stunning level of technical ignorance. First they demand that all content be tracked to make sure it's not infringing... and then at the same time, they insist that such a system can't make use of individual data. This is, effectively, JURI telling internet platforms "you are required to base your servers on the sun and... you're not allowed to transmit data through space." These requirements are written by people who have no idea what they're talking about.

Small and medium-sized enterprises Any platform is covered by Article 13 if one of their main purposes is to give access to copyright protected content to the public. It cannot make any difference if it is a “small thief” or a “big thief” as it should be illegal in the first place. Small platforms, even a one-person business, can cause as much damage to right holders as big companies, if their content is spread (first on this platform and possibly within seconds throughout the whole internet) without their consent.

This may be my favorite part of this nonsense. Remember how just a few paragraphs above this JURI was insisting that it wouldn't impact individuals and that everyone was ignoring that Article 13 only applied to a tiny subset of internet sites? Now, here, it's arguing the exact opposite, saying straight up that it must apply to basically all internet sites, even ones that are run by a single person. And they use "one-person business" ignoring the fact that tons of individuals will, say, post ads or donation links on their personal websites, just to pay for the hosting. But that will suddenly turn them into being "commercial" businesses under the umbrella of the censorship requirements of Article 13.

So, which is it JURI? Does Article 13 apply to these platforms or not? Ah, it totally does:

In view of such a small business potentially causing such a tremendous damage to right holders, the compromise text does not foresee any exemption for SMESs.

Seriously, it feels like whoever wrote this portion of the document apparently has never met whoever wrote the earlier part of the document trying to play down how many sites it would impact. Someone should introduce them to each other.

However, the text provides safeguards that will benefit SMEs. Measures must be appropriate and proportionate. We cannot demand the same thing from an SME as from Youtube. Since the measures may be very different in nature, from the content recognition system to a simple notification system, there are many possibilities for SMEs to find measures corresponding to their means and size.

Okay, so I run a small platform. You tell me that the measures must be "appropriate and proportionate." I have no freaking clue what that means for me. I don't need to implement ContentID, which is good because ContentID cost more to build than Techdirt probably makes in a century. But... as a small site I'm left with zero understanding of what I need to do, other than block the EU or hire some very, very expensive lawyers who probably still can't stop me from getting dragged into court.

This kind of uncertainty is going to be a massive drag on smaller sites.

Finally, solutions compatible with the Directive already exist on the market, are affordable for SMEs and the market will continue to develop in this direction.

This is what should be known as "the Audible Magic lie." Supporters of Article 13 love to point to Audible Magic -- who makes a filter platform for music -- to claim that there are products on the market. There are a few major problems with this claim. First of all, the idea that they are "affordable" is laughable. As I've noted in the past, we spoke with a smaller platform who noted that Audible Magic quoted them a price of approximately $50,000 per month. That's over half a million dollars a year. And this was not a large site. Smaller sites don't have an extra half a million dollars lying around to hand off to some company to provide a tool that doesn't work very well and which serves no real purpose other than to annoy its users and drive them elsewhere.

Second, such filters may exist for music (and possibly video), but that's not the case for lots of other content. Photos? Not really. Text? Nope. Yet, Article 13 applies to everything.

JURI's attempt to salvage the horrible internet-destroying directive it passed a few weeks ago is confused, ignorant and disingenuous. Hopefully MEPs don't buy it. If you haven't yet, NOW is the time to tell MEPs to #SaveYourInternet. Because if they don't, we're going to have a very, very different internet in the near future. And the public isn't going to like it.

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Filed Under: article 11, article 13, censorship machines, copyright, copyright directive, eu, eu copyright directive, juri, link tax, mandatory filters, snippet tax, upload filters