Hollywood Asks EU To Drop Article 13 Entirely, Because It Might Possibly Have A Tiny Compromise For The Internet

from the going-for-broke dept

Earlier today, we had a post detailing the completely ridiculous "defense" of Articles 11 and 13 in the EU Copyright Directive that the EU Parliament's JURI Committee released. It was so full of misleading statements, outright lies, and contradictory arguments that it would have been hilarious, if it wasn't trying to justify changing the entire internet for the worse. However, those of us who think that the EU should drop Article 13 (and Article 11) entirely now have a very unlikely ally: the legacy entertainment industries, who were the ones lobbying heavily for Article 13 in the first place.

Really.

As we had noted last month, as the negotiations moved forward on Article 13, the TV, sports and film industries -- calling themselves the "creative sectors" -- have been suddenly freaking out and asking the negotiators to hit the brakes, or at least carve them out of Article 13. They were doing this for all the wrong reasons of course. Specifically, negotiators had begun to consider a very, very limited (and ridiculously weak) safe harbor for internet platforms, that if they followed a few key steps, they'd be able to avoid having massive liability foist upon them if they let any users sneak through an upload of infringing content (they'd still have to pull it down quickly after it was uploaded, but they wouldn't be facing billions in fines).

And, now with Article 13 just about finalized and it looking absolutely terrible in almost every single way... Hollywood is going for broke and now calling for negotiations on Article 13 to be suspended entirely. Again, they're doing this for totally the wrong reasons, but considering that absolutely no one wants Article 13 at this point, shouldn't EU negotiators just drop it?

We understand the eagerness to bring the negotiations to a close within the current mandate. However, rather than rushing the highly controversial Art. 13 and seeking conclusion of this provision, no matter the jeopardy to the European copyright framework and no matter the prejudice and damage to the creative sectors before the end of this legislative period, we urge EU co-legislators to suspend negotiations with respect to this article.

We agree. Negotiators should drop Article 13 entirely (Article 11 as well, but we'll discuss that another time).

This letter is signed by a bunch of legacy copyright interests, with the main one being the MPA (the MPAA's international arm). And their reasoning, as before, is that they actually think that they're going to get a better deal (i.e., no safe harbors for internet services at all) in the EU Courts:

One of the main justifications for Article 13 articulated in the Commission’s original impact assessment back in 2016 was the absence of a CJEU referral that could bring clarity to the question of whether an uploaded content service is responsible for acts of communication to the public and/or can benefit from the hosting provider status under the E-Commerce Directive. Since that assessment the situation has now fundamentally changed. In the meantime, such a referral has been launched by a recent decision of 13 September 2018. The German Federal Court of Justice (Bundesgerichtshof) referred a case to the CJEU involving YouTube/Google and certain rightholders, for clarification of this very issue (case C-682/18 Google e.a.).

Basically, Hollywood and its friends pushed for Article 13 when they thought that courts had read the law (correctly) to mean that the safe harbors already existing in the E-Commerce Directive applied to internet platforms hosting user generated uploads of content. However, at least one German court has mucked that up, and that case is being reviewed by the EU Court of Justice... and Hollywood is hoping that the CJEU will just declare that these safe harbors don't apply for platforms hosting content. Basically, Hollywood is going for broke. It truly wants to make the internet change massively, such that there is no more "user generated content" platforms unless those platforms first agree to throw money at Hollywood not to sue them. It's pretty close to an outright extortion scam.

Either way, we're happy that Hollywood has now properly recognized that EU negotiators have no business moving forward with Article 13, and we're happy to agree that it should be dropped.

Filed Under: article 13, copyright, eu, eu copyright directive, intermediary liability, safe harbors
Companies: mpa, mpaa


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  • icon
    Mason Wheeler (profile), 15 Jan 2019 @ 11:05am

    Various people have claimed that "information wants to be free" and that "information wants to be valuable" with varying degrees of justification on either side.

    Might I suggest the less controversial notion that information wants to be? And if someone wants it gone, in violation of its fundamental nature, at the very least they should have to get a court of law to agree?

    Extrajudicial takedowns have never been a good idea. We need to push back, and get them rolled back. We shouldn't need to talk about "safe harbors" that aren't safe harbors at all, but in actuality nothing more than tools of extortion. The (universal) safe harbor should instead be the judicial system, and the principles of the Presumption of Innocence and of Due Process.

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 15 Jan 2019 @ 11:35am

      Re:

      You appear confused as to why safe harbors exist.

      Safe harbors provide a clear route to limit intermediary liability. Without them, liability claims start with the hosting provider. There are, admittedly, issues with current implementations, but removing them and leaving it to the courts does nothing to solve issues with the cost of civil litigation. Just ask Vimeo. Its not enough to win the lawsuit. If you can't shut down the litigation early, it is a pyrrhic victory at best, leading to the restriction or banning of user submitted content.

      Removing intermediary Liability protections (safe harbors) doesn't solve issues regarding burden of proof with Notice and Takedown (or notice and staydown), except in that we then don't have user submitted content to have the debate over.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 15 Jan 2019 @ 12:05pm

        Re: Re:

        I'm not confused at all. So-called "safe harbors" exist as an extension of bad policy, making it worse.

        Safe harbors provide a clear route to limit intermediary liability. Without them, liability claims start with the hosting provider.

        Which is why it's not a "safe harbor" at all. Calling it that is an Orwellian abuse of the language. An actual safe harbor is CDA 230, which says that the host is not liable unless they actively participated in creating the content, not just hosting it.

        What extrajudicial takedown regimes are is a tool of extortion. They provide leverage for unsavory types to say "that's a nice site you have there. It would be a shame if someone were to drag it into court and hold it liable for user-generated content." That entire notion needs to go.

        A system that would actually make sense looks like this:

        • Record label says "hey, this video on YouTube infringes on our rights."
        • The label goes to a court and says "we believe that this video on YouTube infringes on our rights."
        • The court says "Presumption of Innocence says I can't just take that statement at face value, especially with your track record. Can you demonstrate to my satisfaction that 1) you own the rights to some material, 2) this video makes unauthorized use of it, and 3) it does so in a way that is not Fair Use?"
        • Record label demonstrates these three points to the court's satisfaction. (Or fails to, in which case it's thrown out.)
        • Court decides there's a reasonable likelihood that this video is infringing. It sends a court order to YouTube saying "this video by user Bob Smith appears to be infringing rights held by Record Label, Inc. Please notify Bob Smith."
        • YouTube notifies Bob Smith of the claim and the pending litigation.
        • If Bob Smith (or his lawyer) responds within a reasonable amount of time, he faces Record Label in court, where Record Label has to prove that he did something wrong by uploading the video. If he loses, the court sends a court order to YouTube that this video should be taken down as infringing.
        • If Bob Smith chooses to take the video down instead of facing the label in court, the court case is dismissed and that's the end of things. (If he later puts it back up, this can be used as evidence against him in future proceedings.)
        • If Bob Smith never replies, the label must then demonstrate to the court beyond a reasonable doubt that the video is infringing, which (if successful) then results in a takedown court order being sent to YouTube.
        • If Bob Smith comes to court and the video is found to not be infringing, Record Label is required to pay Smith's attorney fees.

        If this sounds like a lot of work to get something taken down... well, yeah. That's the point. When we make it easy, we get massive abuse, so we fix it by making it difficult.

        reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 15 Jan 2019 @ 12:38pm

          Re: Re: Re:

          And without the safe harbor laws (because this happened), youtube is found guilty of copyright infringement.

          Youtube, by its nature, infringes copyright constantly if the content is not approved to be on its servers. Intermidiary liability protections state that google is not responsible for that infringement, the uploader is. They don't sue Bob Smith, They Sue Youtube, even in your example. If they proved youtube is infringing in point 4, it doesn't go down the chain. They get big damages from YouTube. YouTube could, in theory, then go down the chain.

          Getting rid of Intermidiary liability (Safe Harbors) is not necessary to remove Notice and Takedown (extrajudicial removal). The extrajudicial action is only a means to guarantee the safe harbors. Your description reads like YouTube has a safe harbor, but that the action they need to follow is issue notice, rather than granting a takedown. But they still have intermidiary Liabaility protection, otherwise known as a safe harbor.

          This all ignores that your route requires treating the courts as the sole mediator, and rearranges the court system entirely. But youve hit Mike's idea on how to fix DMCA notices on the head. Notice and Notice. Where the rights holder notifies Youtube, and it is passed on to the uploader, whose content remains up if they send a counter notice in a specified amount of time (no preemptive takedowns). Then, if the rights holder wants to pursue, they file a lawsuit (and the content remains up until the end, unless the court grants an injuction).

          It achieves the same thrust as your approach, but retains safe harbors, and doesn't rearrange the entire judicial process.

          reply to this | link to this | view in chronology ]

          • icon
            Mason Wheeler (profile), 15 Jan 2019 @ 12:46pm

            Re: Re: Re: Re:

            And without the safe harbor laws (because this happened), youtube is found guilty of copyright infringement.

            Which is why in the past, when I've brought up the idea of doing away with the DMCA, I've stated that part of fixing it would be to bring copyright under the aegis of CDA 230, making it consistent with all other classes of content.

            This all ignores that your route requires treating the courts as the sole mediator

            No it doesn't. It's not ignoring that at all; that is the explicit point of the whole thing! The courts, not the platforms and certainly not the alleged victims, should be the one and only authoritative source for deciding if the law has been violated by a certain action. This principle should not change simply because the law that was allegedly violated was copyright law.

            reply to this | link to this | view in chronology ]

            • icon
              James Burkhardt (profile), 15 Jan 2019 @ 1:01pm

              Re: Re: Re: Re: Re:

              >>The courts, not the platforms and certainly not the alleged victims, should be the one and only authoritative source for deciding if the law has been violated by a certain action. This principle should not change simply because the law that was allegedly violated was copyright law.

              So, US courts prefer the parties attempt to resolve their dispute (mediation) prior to actually employing the power of the court. Your approach requires the courts to rule on a motion to dismiss before the opposing party is even notified there is a dispute. You also extort YouTube with the power of the court into forwarding a court summons (I am assuming that's why Youtube is being sued despite Bob Smith uploading the content). If YouTube has SEC 230 protections, the suit never gets to Bob, as the suit against YouTube is dismissed. IF it does not the suit never gets to Bob, because he isn't being sued. YouTube is. The sequence of events violates all kinds of rules of civil procedure.

              Id prefer a system that encourages a dialog to resolve the issue first and formost (notice and notice)

              reply to this | link to this | view in chronology ]

              • icon
                Mason Wheeler (profile), 15 Jan 2019 @ 1:37pm

                Re: Re: Re: Re: Re: Re:

                Stop twisting my words. You're claiming I'm saying things I never said.

                At no point in this sequence is YouTube being sued. The dispute is always between the record label and the user, and no one else. YouTube is required (by the court, not by the label) to notify the user and allow them to respond. I worded it that way specifically to avoid the dual problems of YouTube being dragged into court for discovery or, more broadly, YouTube or other platforms being required to disclose the identity of a hitherto anonymous user to a party who may be acting as a copyright troll.

                reply to this | link to this | view in chronology ]

                • icon
                  James Burkhardt (profile), 15 Jan 2019 @ 3:57pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I misread your original sequence, I admit.

                  I also believe you have no understanding of how the court works, or is structured to be used. You also fail to understand how a claims verification step lacking an adversarial process will fail to curb abuse, and that in the end, there is no need or benefit to involving the court at this step in the process.

                  reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 15 Jan 2019 @ 12:46pm

          Re: Re: Re:

          Prior to the DMCA, you did have to take (or at least threaten)legal action since that was the only option available to you. The industry didn't like that, so they whined to Congress about how infringing stuff being online caused all these huge losses for every minute it was there and they needed a way to get things taken down faster - enter the DMCA: getting the host to do the takedown under threat of liability.

          What you're proposing is essentially for things to go back to the way it was before the DMCA. I don't have a problem with that.

          reply to this | link to this | view in chronology ]

          • icon
            Mason Wheeler (profile), 15 Jan 2019 @ 12:50pm

            Re: Re: Re: Re:

            I'm not proposing to go back; I'm proposing to go forward. I'm proposing that we learn from the mistakes of the past. One thing that we didn't have in the past, that should be included as a part of repealing the DMCA, is bringing copyrighted content into the CDA 230 fold, such that the platform can't be sued for hosting infringing content.

            The user can be sued for hosting infringing content, and the court can order the platform to make the user aware of this, but the intermediary liability itself would be gone. The only liability in copyright would be the obligation to obey court orders to take down content that the court has ruled infringing.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Jan 2019 @ 12:37pm

        Re: Re:

        >except in that we then don't have user submitted content to have the debate over.

        One extra word, over, as without user submitted content, people cannot have the debate.

        reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 15 Jan 2019 @ 12:39pm

          Re: Re: Re:

          Noted.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 15 Jan 2019 @ 3:03pm

          Re: Re: Re:

          > except in that that we don't have user-submitted content over which to have the debate.

          Corrected for grammar :P

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 15 Jan 2019 @ 4:13pm

            Re: Re: Re: Re:

            Nope, as if the entertainment industry get their way, you would not have been able to join the debate to correct the grammar, as the debate is user submitted content.:-) (Besides which the original grammar is clear enough.)

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Jan 2019 @ 11:37am

    Did they ask that it be dropped?

    None of the quotes presented support the idea they wanted the provision to be dropped, only that there should be no further negotiation about it. Pushing the Hollywood version of the law through with no compromises would fulfill that.

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 15 Jan 2019 @ 11:48am

      Re: Did they ask that it be dropped?

      The last public status of Article 13 was it being asked to be dropped or negotiated to drop the recently introduced safe harbors. The request that negotiations be dropped while safe harbors and other bits are still being negotiated would prevent the section from being ratified.

      And in fact, from the quotes: "We understand the eagerness to bring the negotiations to a close within the current mandate. However, rather than rushing the highly controversial Art. 13 and seeking conclusion of this provision, no matter the jeopardy to the European copyright framework and no matter the prejudice and damage to the creative sectors before the end of this legislative period, we urge EU co-legislators to suspend negotiations with respect to this article." If they do not conclude negotiations within this mandate, it drops article 13 from this reform package.

      So I fail to see your argument.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Jan 2019 @ 12:00pm

        Re: Re: Did they ask that it be dropped?

        Thanks, that's helpful to those of us not so familiar with EU legal procedures. Still, I take "drop" to mean something relatively permanent, and you wrote that "it drops article 13 from this reform package"—but Hollywood haven't disavowed this and could well be planning to defer it rather that drop it.

        reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 15 Jan 2019 @ 12:47pm

          Re: Re: Re: Did they ask that it be dropped?

          Much as in the US, you can drop it without it being permanently dropped in the legislative or treaty process. They keep trying to Backdoor SOPA both in laws and trade deals, for instance.

          reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 15 Jan 2019 @ 7:48pm

    Strange bedfellows

    There's something extremely odd about having that lot as (extremely temporary) allies, in that they also want the thing stopped, even if only for all the wrong reasons.

    It's like someone supporting a law that allows them to stab you in the back suddenly opposing it because it says they can only stab you five times, not six. They certainly not on your side as they still want to stab you, they've merely objecting because they want to stab you more, and if they can't shank you as many times as they want then what's the point in the first place?

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 16 Jan 2019 @ 7:53am

    When the thing is so toxic that even those who would benefit the most are afraid it may backfire.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 16 Jan 2019 @ 8:47am

      Re:

      That's the kicker though, their problem with it is not that it's too toxic, it's that it's not toxic enough. Their objection is not that it's bad, it's that it's not as bad as they want it to be, and that if they can't get everything their way then why even bother?

      reply to this | link to this | view in chronology ]


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