Forget The GDPR, The EU's New Copyright Proposal Will Be A Complete And Utter Disaster For The Internet

from the wake-up-folks dept

Today is GDPR day, and lots of people are waking up to a world in which EU regulations are having a widespread (and not always positive) impact on how the internet works. As we’ve detailed over the past couple of years, while there are many good ideas in the GDPR, there are also many ridiculously bad ones, combined with poorly thought out drafting, and we’re already seeing some of the fallout from that. But, believe it or not, there’s an even larger threat from the EU looming, and it’s received precious little attention: the EU’s new copyright reform proposal is set to be voted on next month and it will truly be disastrous to the internet. As it currently stands, it will require widespread censorship in the form of mandatory filtering and also link taxes that have already been shown to be harmful to news.

European Parliament member Julia Reda is sounding the alarm and asking people to speak out. As she notes, many of the folks now freaking out about the GDPR wish they got involved over two years ago when it was being debated. And if you’re concerned about how problematic this new copyright reform will be for the internet, now is the time to speak out (yes, even if you’re not in the EU):

On the topic of copyright, you NOW have the chance to have an influence ? a chance that will be long lost in two years, when we?ll all be ?suddenly? faced with the challenge of having to implement upload filters and the ?link tax? ? or running into new limits on what we can do using the web services we rely on.

In stark contrast to the GDPR, experts near-unanimously agree that the copyright reform law, as it stands now, is really bad. Where in the case of the GDPR the EU institutions pushed through many changes against the concerted lobbying efforts of big business interests, in the copyright reform they are about to give them exactly what they want.

Parliament and Council have had over a year and a half to fix the glaring flaws of the Commission proposal ? but despite their growing complexity, the latest drafts of both institutions fail to meet basic standards of workability and proportionality

Reda’s post goes on to detail the many, many problems of the current copyright proposal — in which merely linking to a news site may require paying money (link tax) and where concerns about how that might negatively impact the entire internet are being woefully ignored. Perhaps even worse is the mandatory filtering idea. The big record labels and movie studios have, of course, been pushing for this kind of thing for years to get back at Google (mainly) and Facebook (a little bit). But, here’s the thing: both Google and Facebook already have those filters (and spent tens of millions of dollars on them). This kind of law fucks over everyone else.

And, it’s actually even worse than a mandatory filtering rule — because the EU realized that such a rule would violate other EU laws. So, instead, it decided to hack away at intermediary liability protections to make mandatory filtering necessary:

Make platforms directly liable for all copyright infringements by their users, and then offer that they can avoid that unreasonable liability if they can show they?ve done everything in their power to prevent copyrighted content from appearing online ? namely, by deploying upload filters (Article 13, paragraph 4). Which remain totally optional, of course! Wink, wink, nudge, nudge.

Tragically, the only remaining point of disagreement in Council is whether this proposal is bad enough, or should be made worse.

We’ve already spent years explaining how this will lead to widespread censorship online, but it will also be a disaster for basically all of the non-Google/Facebook platforms out there. Mid-size companies like Github have already talked about how this could effectively destroy its ability to operate, and lots of other sites would be impacted as well. Any kind of forum site would be at serious risk. Reddit, Pinterest, Twitch, Imgur, WordPress, Medium, Vimeo. This would create massive liability for all of those sites, making it nearly impossible for many of them to function in the EU.

Reda notes that a new draft could make this situation even worse in noting that even having filters won’t be enough to avoid liability:

Mr Voss? latest draft expands the scope of the censorship machines proposal to all web platforms (a) whose purpose is to ?give access to copyrighted content uploaded by users? and which (b) ?optimise? that content. What counts as optimising? Among a long list of actions, we find that ?displaying? the uploads already makes platforms legally liable for any copyright infringement they may include (Recital 37a).

And in his version, web services can?t even avoid liability by implementing upload filters. To protect themselves from being sued, they would need to get licenses from all rightsholders that exist on the planet before allowing user uploads to go online, just in case the upload may contain (parts of) any of their works.

He also claims that checking every new user upload for whether it includes one of hundreds or thousands of specific copyrighted works somehow does not constitute ?general monitoring? (Recital 39), which would be forbidden ? now that?s some wishful lawmaking.

As Reda also points out, most of the EU member states appear to be supportive of these horrible ideas (or even pushing to make it worse). What now stands between this horrible law making a mess of the internet is just the EU Parliament which is currently scheduled to vote on this in late June (probably the 20th or 21st). If you are in the EU now is absolutely the time to speak up. If you’re outside the EU, it also would help to speak up and let the EU Parliament know that this is a horrible idea that will have significant problems for the wider internet, free speech and innovation.

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Comments on “Forget The GDPR, The EU's New Copyright Proposal Will Be A Complete And Utter Disaster For The Internet”

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64 Comments
Bergman (profile) says:

Re: Re:

Copyrighted works are copyrighted when fixed in tangible form — aka saved to file or written on paper or painted on canvas or sculpted into various forms of matter or filmed, etc, etc.

EVERYTHING is copyrighted except those things that are explicitly exempt from copyright by law. This post I am writing is copyrighted, so is your post that I’m replying to. We’ve both granted Techdirt a limited license to these specific works by clicking Submit.

The way the proposed law is written though, unless the content creator is the one who uploaded the copyrighted work (as we have both done here), websites must either have our prior consent to copy our works, or they must reject the upload.

Since the EU considers links to infringe upon copyright and we can link to whatever we want in various ways — even just by mentioning the name of a website, such as Techdirt dot com itself, the only way for any site to avoid liability under the proposed law is to not allow users to upload anything or comment on anything in any way.

For companies, even huge ones like Facebook or Google, the safest thing to do is simply cut Europe off from the internet, by using geo-blocking.

Anonymous Coward says:

Re: Re: Re:

The way the proposed law is written though, unless the content creator is the one who uploaded the copyrighted work (as we have both done here), websites must either have our prior consent to copy our works, or they must reject the upload.

Which brings us back to my original question, how do sites determine who the copyright holder is, including for works where the uploader claims they are the owner.

Anonymous Coward says:

Copyrighted content

if they can show they’ve done everything in their power to prevent copyrighted content from appearing online

Is it even possible to produce non-copyrighted content throughout Europe? Some years ago there were stories saying the laws of some countries didn’t allow people to put things into the public domain.

Anonymous Coward says:

Re – link tax

using google as the example, if google has a news story from the states that links to a nes site in the states no tax will be required?
If that is the case, all they have to do is find a source for each story outside of the UK.
Or if the law is written so that a summary and a link is required they could provide a link back to themselves (google search) to search for the story, and provide results with no summary.
And if just a link is all that is required then hell we all need to get ourselves signed up for the class action against ma bell (or the UK equivalent) cause those bastards been linking to my phone number for years.

Re- “Make platforms directly liable for all copyright infringements by their users,”

So are we going to make gun manufacturers liable for crimes committed by their customers?
Maybe it is valid for software?
So are we going to make automobile manufacturers liable for the crimes of their users they only license the software (firmware) required to run cars now days?

That One Guy (profile) says:

Not a problem

And in his version, web services can’t even avoid liability by implementing upload filters. To protect themselves from being sued, they would need to get licenses from all rightsholders that exist on the planet before allowing user uploads to go online, just in case the upload may contain (parts of) any of their works.

Far from being difficult, this at least would be trivially easy. I mean all a website would have to do would be to check the content against the global database of copyright owners to see who owns what, contact any hits, and get official permission from each and every one of them.

Given the multiple(for redundancy of course) global databases of copyright information and the already in place system to make licensing quick and easy this should be an absolute breeze for any and all content, so I fail to see what the fuss is about for this part at least.

David says:

Re: Re: Not a problem

The statement might actually be true. You’d just have to pay the compulsory licensing board(s) for each country, which would then pass on the money (wink wink) to each copyright holder.

No need to "wink wink": at least in Germany I think more than 70% (probably more than 90% too, I just don’t remeber the exact number) are passed to copyright holders, the rest being "administrative fees".

But you have to be aware that once you are under contract, you’ll have to pay all the levies for your own works and records and sales and whatnot, and you’ll get them "back" with the administrative fee ratio taken out afterwards.

When you tax an ocean, a small percentage is a whole lot of water. Particularly if you tax the tides and take your percentage every time a bit of culture flows back and forth.

You can afford passing the bulk on, even if it is to some heir in the fourth generation born long after a creator’s death or something similarly silly. It’s still more grub than letting stuff get into the public domain.

Anonymous Coward says:

Re: Re: Re: Not a problem

at least in Germany I think more than 70% (probably more than 90% too, I just don’t remeber the exact number) are passed to copyright holders

Except, how would a site know which copyright holders to pass the money onto, for blanket levies like this? If they actually have to scan everything to see who owns which rights, it will be far from trivial. What if everyone in this thread quoted a book or two? I quoted you; what’s implied by that?

Adrian Lopez says:

What about jurisdiction?

I wonder how much damage this could do to websites operating exclusively within the United States but made available to European users. The impact of foreign law on U.S. service providers is a growing concern of mine, and I’m not at all confident in the U.S. government’s ability to protect citizens and legal persons against bad foreign law in today’s connected world. There have been efforts in that direction — the SPEECH act was borne out of an attempt to enforce bad foreign libel law in the United States — but it’s not enough. We may need to do the same for foreign laws in general, especially when those laws are in conflict with US law or lack any local equivalent.

Any reading recommendations on the applicability of foreign law on U.S. soil where a company or legal entity lacks a physical nexus outside the United States? I’m looking to write a piece on this subject but need to read up and/or consult on the matter. Any help from a subject-matter expert would be very much appreciated.

Seegras (profile) says:

Re: Re:

Well, the “EU lawmakers” are actually national executive bodies, and non-elected(!) representatives of them within the EU Commission or the EU Council.

The EU Parliament, which is actually elected, can’t write laws.

This of course is wholly undemocratic and in violation of the separation of powers; and for me the main reason why I would never vote for accession to the EU (I’m Swiss).

NukaCola says:

Re: Re: Re: Re:

Except of course that’s exactly what he said. They are a lame parliament that can either reject or approve laws or rewrite them if the council agrees. They can’t propose laws and so they are just somewhat more legitimate than the Soviet parliament that would get their directives from the CPSU, including law drafts. The plurality of the party affiliation means they are not affirming everything but the lack of legislative ability means that the unelected body can keep pushing for laws that are constantly rejected until one of them slips through.

The Wanderer (profile) says:

Re: Re: Anyone new: Misnack's shtick is disaster of Biblical proportions

IIRC, he misspells “Masnick” on purpose, apparently out of an impression that including that string makes it more likely that a comment will be held for moderation.

No, I don’t know where he gets that idea from, either.

The capitalization of “Biblical” is perfectly fine, however, and I don’t see what you’re finding odd or objectionable about that usage of “swagger”…

That One Guy (profile) says:

Re: Re: Re:

‘Service/Company X is more popular than the other alternatives’ does not a monopoly make.

That a company can decide that new regulations/laws make it more hassle than it’s worth to operate in a country and decide to drop service there also does not a monopoly make.

Given the above, that Google has and could decide to pull service in a country, what about that makes them a monopoly?

The Wanderer (profile) says:

Re: Re: Re: Re:

I think the idea is that no company which does not have so much market influence (etc.) in a country as to qualify as a manopoly can possibly be the sole/primary provider of a service to so much of the country’s population that the country’s government would have reason to be afraid of the backlash from that population if the company decides to pull service from that country.

Thus, if Google or Facebook or so forth pulling out of the EU would get the public up in arms against the government which put in the laws that got them to pull out, Google or Facebook or so forth must have a monopoly.

That doesn’t quite fit the standard definition of a monopoly, but I think I see enough of a valid point in the argument that if “monopoly” is technically not the right word to use, we need to find one which is.

That One Guy (profile) says:

Re: Re: Re:2 Re:

Yeah, I’m really not seeing it. If you stretch the definition that much then a particular company could have dozens of competitors in the market, and so long as it was the most popular such that it’s removal would cause significant backlash against the politicians that caused it that would be enough to qualify, and that strikes me as more than a little absurd.

That would seem to be along the lines of ‘popular = monopoly’, simply taken a few steps farther into ‘really popular = monopoly’.

The Wanderer (profile) says:

Re: Re: Re:3 Re:

Yeah – there’s a reason I phrased that as “I think the idea is”.

I do think that that level of influence is something which needs to be recognized as enough of a Thing of its own to have a single name, much as “monopoly” does, but I don’t have any good suggestions for what that name should be.

The Wanderer (profile) says:

Re: Re: Re:5 Re:

For the same fundamental reason that there’s a point in slapping a label on having so strong of a market position that no one can dislodge you from it, even if you engage in anti-consumer behaviors like price gouging: because that situation is different enough from the general norm that it may need to be treated differently in some cases, so it’s worthwhile to be able to refer to that situation conveniently.

There are differences between those two scenarios, of course, and they’re important ones. I am not at all saying that the ways those two situations need to be treated are the same, or even necessarily similar.

But if we don’t have a separate term for that other sort of strong market position, people who think that it does need to be treated differently from the general norm are going to continue to misapply “monopoly” to it (and thereby imply that it should be treated the same way we treat monopolies), and that’s just not helpful.

dondoo (profile) says:

Is there some part of when something is abused so much that it becomes a huge problem, the State gets involved (even tho over the top every time) that is not clear to anyone? These are really simple things people. Don’t have the attitude that somehow it is not illegal or cheating (or any other favorite response to deny culpability), then when caught (continually BTW) expect ANY sympathy at all. Burn down the current net and start anew, without ANY marketing at all. Can’t have it both ways, open and free or strangled by regulation due to abuse.

NeghVar (profile) says:

Foreign compliance

Why should any company outside the EU comply with any of this crap? They are not bound by EU laws. Various US newspaper sites have blocked IP addresses from EU. https://www.nbcnews.com/tech/tech-news/chicago-tribune-los-angeles-times-block-european-users-due-gdpr-n877591
Is the EU going to demand that the Execs of non-complying companies in foreign countries be extradited to the EU to face prosecution?

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