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EU Copyright Directive Has Been Made Even More Stupid, And Some Are Still Trying To Make It Even Worse

from the yet-it-moves-forward dept

So yesterday, we noted that Article 13 was back on thanks to an apparent "compromise" between the French and the Germans as to whether or not small internet platforms would be exempted from Article 13. France was pushing for no exemption and that the same rules apply to everyone, while Germany demanded some protections for smaller companies (those making less than €20 million per year). We knew, according to the reports coming out of Brussels, that France had won, but now the details have come out and it's worse than we thought.

The new plan does have an "exception" for small companies, but it is so ridiculous as to be non-existent. To qualify, a company has to be:

  • Less than 3 years old
  • Have less than €10 million in revenue
  • Have less than 5 million uniques per month
As Julia Reda points out, this basically means almost no platform will qualify for the exemption (and it gets worse from there, but hang on):

Upload filters required

  • Discussion boards on commercial sites, such as the Ars Technica or Heise.de forums (older than 3 years)
  • Patreon, a platform with the sole purpose of helping authors get paid (fails to meet any of the three criteria)
  • Niche social networks like GetReeled, a platform for anglers (well below 5 million users, but older than 3 years)
  • Small European competitors to larger US brands like Wykop, a Polish news sharing platform similar to Reddit (well below €10 million turnover, but may reach 5 million visitors and is older than 3 years)

And, yes, it would also likely apply to our comments as well. We don't make €10 million per year, nor do we have 5 million monthly uniques... but we are way older than 3 years old. Even for the tiny number of companies who do qualify for the exception, the text of the directive still demands that they make "best efforts" to license the works. In other words, the whole thing sets up a shotgun negotiation where any platform will be required to license all content, which means that license holders can set any rate they want, and if you don't license, they can accuse you of violating the law. This is madness:

On top of that, even the smallest and newest platforms, which do meet all three criteria, must still demonstrate they have undertaken “best efforts” to obtain licenses from rightholders such as record labels, book publishers and stock photo databases for anything their users might possibly post or upload – an impossible task. In practice, all sites and apps where users may share content will likely be forced to accept any license a rightholder offers them, no matter how bad the terms, and no matter whether they actually want that rightholder’s copyrighted material to be available on their platform, to avoid the massive legal risk of coming in conflict with Article 13.

Hey, and it gets even worse. Whereas in the older draft, it at least required copyright holders to tell platforms what was infringing, that's now been removed:

If you can't see that, it shows that the draft of the text has removed the notice requirement for copyright holders to alert platforms to any infringing material, directly removing the phrase "for which the rightsholders have provided the service providers with the relevant and necessary information or submitted a notice..." In other words, copyright holders don't even have to alert the platforms any more -- and platforms might still be deemed liable for any infringing content appearing on their platform. Even if they don't know about it. Which is insane.

Later on, the draft also removes a phrase that requires the copyright holders to work with the platforms, because that's apparently too much of a burden for the copyright holders:

I do wonder if this will get Hollywood and the legacy recording industries back on board.

However, here's the incredible bit. Despite Article 13 now being demonstrably even more ridiculous, the MEP in charge of pushing it forward, Axel Voss, is complaining that it's not idiotic enough yet. In response to this draft from the EU Council (which is expected to be approved on Friday), Voss stated:

“What France and Germany have agreed is a new safe harbor for small platforms, able to exist beyond what we already have today. It’s something we can’t accept,” Axel Voss said at a conference in the European Parliament.

Are you fucking kidding me? He's saying even that tiny, useless safe harbor that will apply to basically no one is too much?

Voss and the entertainment industry are going for broke here. They recognize this is their last best chance to really fundamentally change the internet. It is an attempt to completely wreck its intended purpose as a communications medium and turn it into a broadcast medium of licensed content controlled by gatekeepers (the legacy companies who used to control movies, music, news and books). Don't let them get away with this. Tell the EU Parliament that this is completely and totally unacceptable. EU Parliamentary elections are coming up in a few months, and any MEP should be told over and over and over again that voting to destroy the internet in this way means that they no longer deserve their job in the EU Parliament.

Filed Under: article 11, article 13, axel voss, censorship, copyright, eu, eu copyright directive, eu council, eu parliament, intermediary liability, licensing, safe harbors, upload filters

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  1. identicon
    Qwertygiy, 5 Feb 2019 @ 4:03pm

    Re: Re: Re:

    You misunderstand. You wouldn't be allowed to opt-in. (You're already allowed to opt-out.) Google would be the one making the legally-important decisions here.

    Your content is accused of not properly licensing content from someone. What content? Well, you're not sure, you were never actually told. They sent their complaint to Google, not to you. This complaint alleges that Google is hosting content infringing on their rights without licensing it. The link to your website, or cached content of your website, is presented as one piece of this content. Google is faced with either paying whatever licensing fees this company demands, removing the link to your site, or fighting the complaint in court.

    What's more, Google could be liable anyway, if it's decided they didn't make a "best effort" to obtain a license for the content. What counts as a "best effort", and when did they have to take it? It's quite cloudy.

    Now, on top of this, it doesn't even have to be something you actually infringed. We already see this in DMCA abuse, where it's nearly impossible to sort out legitimate claims from bogus claims.

    All of this is moot, of course, if Google's newly-legally-mandated filters scan your website, find something that might potentially be copyright-infringing, and thus prevent it from being displayed in search results, regardless of whether you want to be included.

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