Article 13 Was Purposefully Designed To Be Awful For The Internet; EU Moves Forward With It Anyway

from the just-admit-it dept

As was widely expected, even if it's unfortunately, on Friday evening the EU Council voted to move forward with the latest draft of the EU Copyright Directive, including the truly awful "compromise" version of Article 13 hacked out by the Germans and the French. This happened despite the fact that there's basically no one left who supports this version of Article 13. The public is widely against it. The internet companies are against it. And, perhaps surprisingly, even the legacy copyright companies -- who pushed so hard for this -- are still angry about the result, which they insist is too lenient on the internet.

I've been left scratching my head over why the copyright holders are still pushing for more here. To be clear, the version that the EU Council approved last week would fundamentally change the internet in a massive way. It would, effectively, make it nearly impossible for any website to ever host any user-generated content. In nearly all cases it would require expensive and problematic upload filters. In the few "exceptions" to that, it would still require a massive amount of concessions from internet platforms to avoid liability.

However, the reality here is simple: Article 13 (and, to a lesser extent, Article 11 with its snippet tax) is purposely designed to be awful. The supporters of these efforts keep insisting that it's not going to harm the internet at all, and that it's just about "closing the value gap" or "making the playing field even" or other nonsense along those lines. They insist that it won't create any harm to user-generated content platforms, or to legitimate, non-infringing works. Given that we've already seen how these kinds of systems work in practice, everyone knows that's a laughably false proposition.

However, a bit of truth came out a few weeks back, when Axel Voss, the MEP pushing this Directive forward, put out a "Q and A" page attempting to defend both Articles 11 and 13. We walked through that page sentence by sentence to debunk it, but I kept thinking about why the EU and Axel Voss would push such utter nonsense. Normally, politicians at least try to put forth a flimsy attempt at pretending they're based in reality. But not here.

However, in rereading the "answers" to the questions in the document, the whole thing makes sense under one, and only one, condition: if Articles 11 and 13 are purposefully designed to be internet-destroyingly awful , then the belief is that it will force internet platforms to negotiate some sort of "global licensing" deal. Professor AnneMarie Bridy made this point last month, in noting the following:

Reading #Article13, it's almost as if the EU Parliament imagines that the entire universe of rightholders with which/whom online platforms would have to conclude licenses is somewhere around, idk, a dozen. — Annemarie Bridy (@AnnemarieBridy) January 15, 2019

But, as you read through Articles 11 and 13 and Voss's "answers" and the comments from the legacy copyright players, it all "makes sense" if you believe the entire point of these bills is not to set up a system whereby the internet companies are installing actual filters and blocking infringing works. Rather, they only make sense if the goal is to make things so goddamn awful for the internet companies that they pay the legacy copyright holders not to sue them. Indeed, the Q&A comes the closest to saying exactly this:

Large online platforms and news aggregators will have more reason than currently is the case to strike fair remuneration (licensing) agreements with artists and media houses who would have identified themselves beforehand as the owners of a piece of work. A platform or news aggregator will be further incentivised to strike such agreements because, in the absence of them, it would be directly liable if it hosts a piece of work with an unpaid licence fee. The current legislation offers more wiggle room for platforms to absolve themselves from this liability.

As we pointed out last time, this is utter nonsense, as nothing in the draft actually sets this up. But it does make sense if the entire point of the bill is to be so onerous as to be impossible -- creating a shotgun situation in which the platforms feel the need to pay off the copyright holders not to sue them (jokingly referred to here as "licensing agreements.") This is why the copyright holders are so upset about any form of safe harbor or any way in which platforms might avoid massive, crippling liability. Because if there's a path to abide by the law, then there will be less incentive to pay off Hollywood not to sue. It goes on:

The draft directive will not be the source of censorship. By increasing legal liability, the draft directive will increase pressure on internet platforms/news aggregators to conclude fair remuneration deals with the creators of work through which the platforms make money. This is not censorship.

Again, this makes no sense, as the entire point of the draft directive is increased censorship... unless every internet platform pays off Hollywood to leave them alone.

And, again, as Prof. Bridy rightly points out above, all of this only makes sense in the context where there is a fairly small number of rightsholders and an even smaller number of internet platforms, who can gather together and hash out "don't sue us" deals (i.e., "licenses" < -- sarcastic quotes implied). And, again, that only works if the actual provisions of Articles 11 and 13 are so laughably stupid, so ridiculously onerous, so painfully destructive, that the internet platforms are left with no choice (well, that, or shut down, which many would likely have to do).

And thus, it would be better for all involved if Hollywood, the big news publishers, and the record labels just admit this upfront. The entire point of Articles 11 and 13 are that they are awful and destructive to the internet. It is a form of regulatory extortion. "Pay us, or we destroy your internet." At least admitting that would be intellectually honest.

Still, given that, wouldn't it be better for Axel Voss and others to just do what clearly is intended here and write a law that is a lot more honest and just says "Google and Facebook need to pay &euro:X amount to satisfy these flopping legacy industries that failed to innovate." At least that would be much more direct and honest. But, alas, it appears that's wishful thinking. Instead, the EU Parliament will now gather with the EU Council and EU Commission for a new round of "trilogue" negotiations, where everyone will pretend that there's some good reason for this set of regulations, when even the key rationale in support of the effort is that following the law will be so painful and so destructive that the internet platforms will pay off copyright holders to avoid having to comply.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: article 11, article 13, copyright, eu, eu copyright directive, eu council, licensing

Companies: facebook, google