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:

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.

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


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The First Word

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  1. icon
    Rico R. (profile), 11 Feb 2019 @ 12:17pm

    Re: Re: Re:

    Never mind your lack of proof on people getting rich off of piracy. Never mind the fact that your mention of a mailing list makes absolutely no sense. (The only time I have to enter my email for a mailing list for free content is when the said free content is made available for free in exchange for my email by the copyright holder themselves. That is NOT "piracy" because it's authorized by the copyright holder.) Let's talk about "the end of Piracy Raod" because if you think that Article 13's passage is going to result in a quick and painful death for TPB and Torrent sites, you're sadly mistaken.

    If, as you will put it, someone wants to go out of their way to create a site or app whose sole purpose is to help facilitate copyright infringement, they're going to do so. Article 13 would only add the liability they already face when they do so, and I'm not even sure it's going to do that. If you think that those that run sites like TPB are going to stop operating if Article 13 passes, then you've got another thing coming. The DMCA in the US didn' stop piracy, and you think passing another law in another region is going to change that? Copyright infringement is already illegal, but the "pirates" behind the "piracy" don't care, and they could care less about how copyright law is going to change.

    All Article 13 will do is take sites that aren't trying to help its users infringe copyright, follow the DMCA to the letter, and even has a plethora of user-generated content that is wholly original, and make them liable if even 1 second of an infringing upload is found. Sites like YouTube, Facebook, Tumblr, and many more have WAY more to worry about with Article 13 than TPB. YouTube's copyright system is broken to the point where abusive Content ID claims are almost laughable at this point, and if Article 13 passes, not only will Content ID be here to stay, but it will likely be made a billion times worse. I wouldn't even be surprised if all monetization claims are blocked in the EU because of this.

    So no, Article 13 won't be the end of Piracy Road. Piracy will continue unscathed, while the rest of the Internet gets screwed over.

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