The Intellectual Dishonesty Of Those Supporting The Existing Text Of The EU Copyright Directive

from the ignorance-or-purposeful-misdirection dept

As the EU gets ready to vote (again) on various amendments for the EU Copyright Directive, there has been an incredibly dishonest push by supporters of the original directive (often incorrectly claiming they’re thinking of creators’ best interests), to argue that the warnings of those who think these proposals are dangerous are misleading. What they are doing is unfortunate, but it deserves to be called out — because of just how dishonest it is. They usually involve misrepresenting the law and its impact in order to completely misrepresent what will happen.

There are numerous examples of this in practice, but I’ll use this article in the German site FAZ as just one example of the kind of rhetoric being used, as it is an impressively intellectually bankrupt version of the argument I’m seeing quite a bit lately. It was written by a guy named Volker Rieck who has shown up in a bunch of places attacking critics of the EU Copyright Directive. He apparently runs some sort of anti-piracy organization, which perhaps shouldn’t be surprising. But, that doesn’t excuse the sheer dishonesty of his arguments.

Very early in the process, the only MEP from the Pirate Party, Julia Reda, began to fight the propositions. For her campaign, she made very strong use of distortion and simplification. The word “link tax”…, by way of which Reda wanted to stop Article 11 of the policy, may be catchy, but there is something unwittingly comical to the earnest suggestion that there is a tax, collected by the tax office, on using links to online pieces of writing.

This is… odd. The word “tax” is used in a variety of contexts to show excess costs of certain proposals. Nothing about it deliberately suggests a “tax office” will be involved. But the “link tax” is quite real. The whole point of Article 11 is to create a new form of license — required for certain sites to have to pay for nearly every use of media content. Let’s be clear, because it often gets lost in the discussion: all of this content is already covered by copyright. At issue is whether or not one can link to it and include a short summary of the contents without first having to pay a license above and beyond what they would have to pay to license the content itself. And this is not an ambiguous issue. In the latest draft of the proposal from MEP Axel Voss it’s pretty explicit that the link tax is about “obtaining fair and proportionate remuneration for such uses.” The following is directly from the text of Voss’s proposed amendment (which is more or less the “default” plan for the Copyright Directive as he’s the main MEP behind the Directive):

Online content sharing service providers perform an act of communication to the public and therefore are responsible for their content and should therefore conclude fair and appropriate licensing agreements with rightholders.

It is absolutely a tax to require a license for such uses. And while Voss has included this escape clause saying that this “does not extend to acts of hyperlinking with respect to press publications” it is left entirely vague as to how to distinguish when a link with some basic link text is allowed without a license and when it needs to be licensed. Indeed, Voss’s only real limitation is that the rules “shall not extend to mere hyperlinks, which are accompanied by individual words.” Individual words. What goes beyond “individual”? Considering that individual means “single” or “one,” it seems clear that under Voss’s definition, accompanying a link with two words, may now subject you to requiring a license to link. This is even worse than the awful German law, which only required licenses on something beyond “short” phrases (where even that was not clearly defined).

Back to the awful FAZ piece:

The polemical buzzword “upload filter”, to oppose Article 13 of the policy, wasn’t much better. Upload filters are not, and were never, part of the proposal, but the word works well in fueling fears. Indeed, Julia Reda managed to convince some of her supporters that if the policy on copyright law is passed, everything on the internet will be filtered, and memes ? yes, those beloved memes ? will be forbidden altogether.

The fact that the policy says something completely different was of no more than marginal interest. According to the actual proposal, web platforms ? and only web platforms ? would have been obliged to enter into license agreements with the individual right owners of user-uploaded content or the copyright collectives by which the content is maintained.

This is particularly galling in just how dishonest it is. Saying that this won’t impact users, but merely platforms, is bullshit. How do most users communicate these days? On platforms. And saying that platforms then have to license all content, as if the “cost” of that is not then passed along to the users. And that “cost” isn’t just in monetary terms. It will, undoubtedly be in terms of perfectly non-infringing works completely taken offline, either because of accidental identification or malicious takedown efforts.

Sure, some people could try to post content on their own sites, but how long will it take until those who support Article 13 move down the stack and argue that hosting companies who allow users to host their own websites are in the same classification as the platforms who are required to obtain licenses under the law?

It gets worse:

In this scenario, it?s the platforms who are responsible for license payments; users have nothing to do with it.

I mean, come on. The platforms are the arbiters of end-users speech in this case. Of course users have everything to do with it. If it’s too costly, the platforms will default to blocking the content, rather than allowing it to happen. And, again, any costs will be passed on from the platforms to the users in some form or another.

It would simply have meant a duty for the platforms to be transparent in order to comprehensively account for the licensing and to correctly forward the payments to the respective right owners. If a platform didn?t want to enter such a license agreement, the EU policy would at least hold that platform responsible to keep its own website clean. How it achieves that is up to the platform itself, as long as it prevents copyright infringements.

This is also particularly dishonest. If a platform doesn’t want to enter into such a license… they would be responsible for keeping their website clean. And how would they possibly do that? They’d be required to pay for an incredibly expensive (and ineffective) upload filter. So to claim that this isn’t a proposal for upload filters is utter nonsense.

Also, the whole “it’s up to the platform, as long as it prevents copyright infringement” is fantasy land thinking, as if there’s some solution that magically stops all copyright infringement. Whoever wrote this is incredibly dishonest or ignorant of how the world works. There is no solution that prevents all copyright infringement — other than not existing at all.

Unfortunately, though, many of those who have joined the discussion have refused to put in the intellectual effort to read the proposal in its updated form and understand its intention. This goes for everyone all the way from web associations of political parties to journalist Sascha Lobo, who wrote of “censorship machines”… in “der Spiegel”. If only they had read what they publicly decry! Then maybe they would have realised that for the first time, users of platforms that don?t license content would have had substantial leverage, including a right to mediation in the case of the blocking of content. At that point, at the latest, it should have become clear that the term “censorship” misses the mark. Perhaps it was simply too complicated to get hold of and understand the current version of the document?

Leverage? What leverage? If the law requires you not to allow any infringement, you have no leverage at all. Second, the concern about censorship is not at all made up. We know it’s real because we see it happen all the time under existing notice-and-takedown regimes, which are significantly less extreme and less draconian than what’s required under Article 13. The censorship comes from platforms seeking to avoid significant liability (and costly trials). They are incentivized (heavily) into taking down content to avoid the risk and liability. And thus, they will take down lots and lots of content rather than risk it — especially when held to ridiculous standards like preventing all infringement from appearing on their platforms.

The dishonesty continues:

But let?s talk about the platforms, since they are the ones affected by this. More specifically, let?s talk about one of the most successful platforms: Youtube. It?s exclusively platforms like Youtube that the policy addresses. Not start-ups, not online shops, and not open source platforms.

This is blatantly untrue. As we noted back in July, those behind the EU Copyright Directive explicitly said the opposite. Here’s what they said:

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.

That’s from the Committee who voted on the Directive. So to say it only targets platforms like YouTube when the crafters of the law itself say that it applies to small platforms and even one-person businesses, shows just how dishonest supporters are concerning all of this. Separately, it’s obvious that it doesn’t just apply to YouTube because YouTube already complies with Article 13 via things like ContentID. To argue that the law is targeting them is ridiculous. Why write an entire new law to just say “that thing you’re already doing, yeah, keep that up.” The author of the FAZ piece then goes on to talk all sorts of nonsense about Content ID.

For years, Youtube has used a system called Content ID, which allows right owners who have uploaded their content to the platform to decide what happens to it if and when it?s used. This ranges from monetarisation ? if, for instance, a user uploads a video which includes music, the right owner of that music receives a portion of the video?s ad revenue ? to the blocking of the video. Above all else, it?s meant to prevent third parties from making money using other people?s content.

But it gets better still. A system called Copyright Match, which Youtube developed for its channel owners, is just now ready to be put into practice. It is, as it were, a “Content ID” light, and is mainly intended to assist Youtubers in reacting to identical videos. The user who uploaded the video first automatically receives a message and gets to decide what happens to the duplicate, including the possibility to block it.

Is there anybody out there who?d brand this “censorship”? Apparently not ? after all, there have been no demonstrations against Content ID and Copyright Match. We haven?t seen public outrage against Youtube?s “censorship machine”.

Anyone claiming that there hasn’t been outrage over ContentID taking down all sorts of legitimate content simply has no legitimate argument for being part of this debate. There has been massive and sustained outrage over ContentID and how it takes down all sorts of legitimate content. We’ve had probably over a dozen posts on Techdirt alone of bogus takedowns via ContentID, and people have been highlighting the problems of ContentID leading to inappropriate censorship going back nearly a decade.

If someone is going to insist that (1) Article 13 only targets platforms like YouTube, even when the authors of the law insist that’s not true, and (2) state that no one complains about ContentID takedowns, they have no business arguing that the attacks on the EU Copyright Directive are untruthful. They are ignorant or lying. Neither is a good look.

The rest of the article is out-and-out conspiracy theory talking, including (I kid you not) accusations of George Soros’ involvement in fighting against the Copyright Directive. And yet, amazingly, some people are taking this shit seriously. It is not serious. It is blatantly dishonest and should be treated as such.

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Comments on “The Intellectual Dishonesty Of Those Supporting The Existing Text Of The EU Copyright Directive”

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Anonymous Anonymous Coward (profile) says:

Expert???? at what?

My point about anyone having the ability to pay a so called ‘expert’ to prove whatever side of a particular position one wants (and there could be more than two) is shown yet again. It doesn’t mean the ‘expert’ has to believe in what they are claiming, just that they are getting paid.

The form of pay might come in a variety of ways. In this case it might be that ‘anti-piracy’ organization is actually a copyright troll entity who is engaging in fraudulently accusing IP addresses of piracy with a minimum of evidence and the assumption that whomever is paying for that IP address is guilty. In other cases it might be an ‘expert’ who is hired to testify in court. In other cases it might be the ‘expert’ is part of a panel in front of a group or is just in front of a radio or TV interviewer expounding a partisan point of view, and the pay comes because they work for some foundation that takes on partisan positions.

So, we can deduce that the ‘expert’ is expert at receiving pay and spouting whatever point of view they can conjure ‘evidence’ (often with statistics from bogus studies) for. Being ‘expert’ on anything else is pure conjecture, even if they have ‘credentials’. The ‘credentials’ mean nothing when the objectivity of the speaker is compromised.

The question then becomes, how can we go about verifying experts so that we know they are giving us objective facts rather than the party line rhetoric?

That One Guy (profile) says:

"It is difficult to get a man to understand something..."

"… when doing so would undermine their ‘business’ and/or undercut the arguments they are making."

Addressing the many problems and concerns with the law honestly would underscore just how bad it, and the arguments supporting it are, so instead you get a stream of lies like that that instead attack strawmen and fictions with little to no relation to the actual law.

And of course the cherry on top is when those same people accuse others of ‘misrepresenting’ or ‘misreading’ the law they are defending, in a case of projection so bad you could see it from space.

John Smith says:

I’d rather take my chances with Article 13 *maybe* doing something way down the road than with pirates STEALING my work now. Since I market mostly to wealthy patrons (as a result of mass piracy it no longer pays to market at all to “entitled losers”), this doesn’t impact me as much now but that’s only because the laws have not been enforced. Proper enforcement would allow me to communicate with a much larger audience.

Funny how when he’s talking about content moderation, the companies have the right to do whatever they want, but when it comes to copyright responsibility, it’s “censorship,” even though this is NOT censorship. Section 230 doesn’t censor, they say, it just makes it impossible for anyone retaliated against for what they say to sue for defamation.

Can’t have it both ways.

I’ll say it again: those who want to steal my workare not looking out for me when they claim to be. I can protect my work just fine as long as the laws are properly enforced. This The pro-piracy movement dates back to the “music wants to be free” arguments from the pro-NAPSTER crowd.

ndependent distribution of self-created work is very easy. There’s no way to stop it without shutting down the entire internet and the big tech companies will not cut off their nose (UGC) to spite their face.

Mel T Waters says:

Re: Re: "Stephen T Stone" OFF-TOPIC as always.

Also his usual delusion that can dictate to other persons. — Common here on Techdirt is that fanboys not only defend but seem to hold authority to speak for the site, while Techdirt / Masnick won’t answer. Goes right along with the astro-turfing. — Oh, and by the way, all the zombies have mysteriously disappeared for last week…

Stephen T. Stone (profile) says:

Re: Re: Re:

Not here to prove or sell anything, just present my point of view.

Your point of view is presented as the position of a super-successful content creator. If you refuse to prove you are who and what you say you are, your point of view—and your credibility—will be discarded. I do not accept bold claims on faith; neither should anyone else. Put up the proof or deal with being mocked.

Mike Masnick (profile) says:

Re: Re:

I’d rather take my chances with Article 13 maybe doing something way down the road than with pirates STEALING my work now.

You’d rather take your chances fundamentally changing the open nature of the internet to a closed one because YOU were unable to market yourself while tons of others have done so successfully? You would rather change a system that has enabled millions to create, produce and sell content just because you’re too clueless to make it work? Yeah, that makes sense.

Funny how when he’s talking about content moderation, the companies have the right to do whatever they want, but when it comes to copyright responsibility, it’s "censorship," even though this is NOT censorship.

Um. There’s kind of a key difference: one is the choice of the platform over what content it wants to host. The other is ORDERED from the government or face crippling liability. The one that involves ORDERS FROM THE GOVERNMENT is the one with the censorship. This isn’t difficult.

Can’t have it both ways.

You’re not very smart are you?

I’ll say it again: those who want to steal my workare not looking out for me when they claim to be. I can protect my work just fine as long as the laws are properly enforced.

The laws are enforced. That’s the point. The enforcement of laws is not the problem. YOUR FAILURE TO ADAPT is the problem.

Anonymous Coward says:

Re: Re:

I’d rather take my chances with Article 13 maybe doing something way down the road than with pirates STEALING my work now.

I would rather take the chances with pirates infringing your work than with my work being erroneously removed entirely in the name of protecting yours. Your stuff isn’t better or more deserving than mine (nor mine yours), so any law that forces a platform to filter content (and do so badly, because it can only be done badly at scale) is a bad law.

Anonymous Coward says:

Re: Re:

Instead of a lot of handwringing, how about discussing the actual effect of article 13.

Even if FAZ is right and rightholders only want to have the law enforced selectively and with prejudice, that is not what is in the actual text and it is problematic in relation to the fuzzy-wuzzy exceptions to rightolders rights. Ie. I dislike having to make a deal with you if i satirically want to mock you (The definitions are absolutely crap for how to determine what constitutes exceptions and since I would be responsible with article 13, I would have to count on you wanting to accept getting your work “molested”. Talk about abuse of copyright and the chilling effect, not only of filter type 1 and type 2 errors, but also emotional and irrational creators!)!

Wyrm (profile) says:

Re: Re:

Even though it’s a little off-topic, I would point your dishonest comment on section 230.

You pretend that it prevents from suing anyone, which is patently false. It only prevents suing the platform. The author of the defamatory content can still be sued.

The fact that it’s more difficult (he might explain his view) and less profitable (probably less rich than the platform itself) doesn’t make suing the platform the right thing to do. And thanks to section 230, it also doesn’t make it the legal thing to do.

Mel T Waters says:

No, as in US Meltwater case, there's no right to strip headlines

SHOW ME a positive right to use someone else’s work. That’s what YOU must have, not just a CAN.

You [speaking for GOOGLE] are just trying to claim the values that others pay for to use your and gain own income without ever paying a cent for it, further lying that you’re doing them a favor: INTERNET GRIFTING such as was not allowed prior even though largely possible.

Mel T Waters says:

Re: Re: No, as in US Meltwater case, there's no right to strip headlines

Google has nothing, either, then, so at best you’re for lose-lose.

I’ve no idea why you even care that globalist mega-corporation Google (since you indicate search referral) will have to pay a tiny fraction of its easily gotten income for content. Evidently you are a complete corporate serf.

Mel T Waters says:

Re: No, as in US Meltwater case, there's no right to strip headlines

By the way, kids, PROVING that: Tickbox has caved, will pay $25 million for copyright infringement.

Oh, and speaking of Google: you might recall that Google LOST to Oracle for copying the API, which you wrongly claim is merely declarations without value.


The values that others produce are NOT yours nor even Google’s to use. Period.

Anonymous Coward says:

Re: Re: No, as in US Meltwater case, there's no right to strip headlines

Dear Mel,

Calling people you don’t know kids makes you sound more immature than the people you’re trying to speak to.

The reason behind that is you attempt to undermine whomever you are speaking to by implying their speech (and thus ideas) has no value.

The problem is that the speech of children dose have value, as the questions and resulting ideas they have forces adults to closely evaluate the ways the world around us works. Those ideas also force adults to think about why said ways work and what would happen if there was an alternative method.

As such your behavior is insulting to both children and adults.

Anonymous Coward says:

Re: Re: No, as in US Meltwater case, there's no right to strip headlines

Google LOST to Oracle for copying the API

Only because the appeals court kept denying it until they got the result they wanted. The trial judge, and jury, all ruled otherwise. And the appeals court got it wrong since no actual code was actually copied.

According to this ruling, every single piece of software that exists in the world today is operating illegally. This includes, but is not limited to: Linux, Microsoft Windows, Apple MacOS, Apple iOS, MS Office, Turbotax, Quickbooks, SAP, any video game, etc…

Why? Because every single piece of software has to implement an API to some other piece of software in order to properly function, if only to access a device driver. So congratulations, you’re now a pirate whether you like it or not, since the computer you are using to comment on here is illegal.

Anonymous Coward says:

>Any platform is covered by Article 13 if one of their main purposes is to give access to copyright protected content to the public.

That means all self publishing platforms are covered, including the likes of Jamando, flicker, any blogging platform etc. Some, like those owned by Amazon, like Podiobooks and their self publishing portal can bear the cost of filters if they want to, or convert themselves into traditional publishers..

Killercool (profile) says:

Re: Re: Re:

According to US copyright law, everything is automatically copyrighted.

This post I’m writing? Copyrighted.

Your post?

So: websites have to be written, formatted, given a theme, etc.

By the very act of existing, a website’s purpose is to give access to copyrighted material. Even if it’s no-one’s material but that of the author.

MyMetadataYouDirtyPirates says:

Re: Re: Re: Re:

So, if understand this correctly, I hold exclusive rights on all my personal information (I did create all of it) and therefore those pirates who steal my metadata have infringed upon my copyright and owe me money. I realize I will never get a plug nickel out of those dirty pirates but at least I can wag my finger at them. Also, they owe me a link tax whenever they put my metadata online and available via a link for other pirates to abuse.

Anonymous Coward says:

We need a new term for the internet. Perhaps “WWEEW” (Worldwide Except Europe Web)….

This is such a stupid stupid law. Here is Cowboy Joe Blogger, writing his first post. Can he link to “”? It depends on whether the site is registered in Europe. How does he know that? Well, very simple: look up the address of the Domain Name registrant, right?

Except … in Europe it’s illegal to possess or publish the address of the domain name registrant.

That’s right. In Europe it is now illegal to let Joe Blogger know whether he is about to commit a crime or not.

Anonymous Coward says:

More of the same garbage at El Reg

Here’s an excerpt of the drivel:

Google’s critics are joined by Apple and Spotify in arguing that the UGC loophole gives YouTube a unique advantage over its music rivals and drives down the price of music, which in turn means musicians get much less than others pay (YouTube pays a fraction of Apple’s royalty rates). In 2016, the commission, having demanded concessions from rights-holders over portability and data mining, threw them a couple of sops: one being a newspaper publisher’s right, the other being the UGC framework addressed in Article 13.

Cue the rhetoric. Article 13 is an “extinction-level event”, according to digital rights activitst Cory Doctorow. The Electronic Frontier Foundation claims (once again) that it will “break the internet”.

It is rather depressing to see how poorly this is being discussed in regular media.

Anonymous Coward says:

Re: More of the same garbage at El Reg

It is depressing.

Sadly, most news media outlets have a decided lack of understanding about technology, and I believe this extends to the public at large.

To many, technology is no different than magic. They don’t understand how or why it works, they just expect it to always work and when it doesn’t, they complain when the fix is not instantaneous. Basic computer and internet technology should be added to required school curriculum, along with reading, writing, math, science, and history, and be taught from 1st grade up through 12th grade.

Anonymous Coward says:

Re: Re: Re: More of the same garbage at El Reg

The "fix" is copyright protection and it works just fine.

….Did you seriously just say that copyright protection solves the problem of people being technically illiterate? Did you? Yup, you did. Wow. Please, pray tell, how exactly does copyright protection educate people on how a computer works? How the TCP/IP protocol works or basic networking? Hmm? Can you please explain to me how copyright teaches those things? Please try, I’m genuinely interested see what kind of crap you can come up with to answer this.

All that aside, if copyright protection is working just fine, what are you complaining about? If it’s working just fine then I assume piracy has been vanquished (since that seems to be your main complaint), and all artists are being paid equally for their work. Additionally, copyright isn’t being abused AT ALL to falsely take down content on the internet that isn’t even related to the supposed content being infringed. This is all true, right? RIGHT?????

People don’t realize just how much money creators have lost to piracy over the last generation.

Yeah, they do actually. Studies were done, numbers were found. The result? Lost sales due to piracy was a drop in the bucket compared to actual sales. They also noted that the people who pirated the content weren’t likely to buy it legally if that were their only option, and piracy actually helped increase legitimate sales because it acted as free advertising. cough Ed Sheeran cough.

The sooner that ends, the better.

You do realize more artists are getting paid more money now than ever before, despite piracy (sometimes because of it), mostly due to the internet meaning they can cut out the middle man.

Chip says:

Re: Re:

ps Sycophants is the “word” of the Day on my “calendar”.

It is the Word of the “day” EVERY day On my “calendar”!

This is Because my Calendar is “acutallly” a Copy of th 1986 film Psycho 3 on VHS that I have “modified” with a SHARPIE.

I love “sharpies” almost As much as I LOVE paint Chips. Sniffing “SHARPIES” give e the same Tingly feeling “inside” as “eating” Delicious, delicious “paint” chips does!

now you Sychophants may tell me Chip, that is “not” a “calendar”, it just a “VHS” tape with SHARPIE on it.

Shut up, “sycophants”! You are “stupid”! Stupid! Not “smart” like Me. I am SMART! And I will let the Free Market decide what is a Calendar and what is a VHS Tape with SHARPIE on it!

pps Every Nation eats the Paint chips it Deserves!

Anonymous Coward says:

Re: Re:

He probably just deleted any comment he didn’t agree with and banned all you delusional trolls. At least, that’s what he would have done by your logic anyway.

At least now he deigns to allow you guys to spread your hot garbage all the time and doesn’t engage in any censorship at all. He just allows the community to merely hide your posts and allow anyone to unhide them if they so wish.

As far as I’m aware, comments were never any different than they are today.

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