from the copyright-policy dept
From the European perspective, the revolt against SOPA that happened 10 years ago is a somewhat distant memory. During the past 10 years we have seen two more inflection points in the fight against excessive copyright enforcement: the successful fight against ACTA in 2012 that was directly inspired by the success against SOPA earlier that year and — much more recently — the fight against upload filters that unfolded between 2016 and 2019 in the context of the EU copyright reform.
In this post I will trace the lineage of the struggle against excessive copyright enforcement from the revolt against SOPA all the way to the outcome of the EU copyright reform that was enacted in 2019.
From SOPA to ACTA
There can be no doubt that SOPA — had it been enacted — would have had massive consequences for internet users around the globe. While formally a proposal for legislation in the US, it would have changed the operating rules for platforms that are part of the online fabric for most of the global population. Much like the rules of the DCMA and Section 230 of the Communications Decency Act are underpinning copyright enforcement and content moderation around the globe, SOPA would have been applied globally.
This is partially due to the fact that the platforms targeted by the proposal are primarily based in the US, but also because platforms that operate on a global scale have incentives to comply with rules that apply in sufficiently large markets, which means that regulatory regimes are often exported well beyond the jurisdictions where they have been originally enacted.
Seen in this light, the successful revolt against SOPA was as much a win for internet users outside of the US as it was for users in the US. But for internet users and activists in Europe, it also provided the inspiration for their fight against ACTA — the Anti Counterfeiting Trade Agreement that was negotiated from 2007 through 2010 by the European Union, the US, Switzerland, Canada, Australia, New Zealand, Mexico, Singapore, Morocco, Japan, and South Korea.
In parallel to the protests against SOPA, the EU and the individual EU member states geared up to sign the final ACTA agreement. The protests against ACTA in Europe erupted when — in an act of incredibly poor timing — the Polish government announced on the 18th of January 2012 that it would sign ACTA.
This moment unleashed a series of protests that took place both online and offline — in the form of sizable demonstrations in a number of EU member states. The protests that continued throughout the spring of 2012 ultimately lead to the rejection of ACTA by the European Parliament on the 4th of July 2012, effectively killing ACTA less than half a year after SOPA had been defeated.
While unfolding in different political venues, the mobilizations against SOPA/PIPA and ACTA share an important characteristic. Both were directed against measures that were extremely one-sided: Both SOPA and ACTA bundled right holder demands for stronger — or rather excessive — copyright enforcement into legislative measures that did not contain any other elements.
In both cases a central element was the desire to enlist Internet Service Providers as copyright enforcers. This meant that the mobilization against these measures could rally around a very simple political demand — to stop these measures from being adopted. In both cases the widespread opposition from internet users and platforms (both commercial and non-profit) managed to build up enough political power to achieve this well defined goal.
From ACTA to Uploadfilters
With ACTA and SOPA defeated, it took a while for rightholders to launch another attempt to gain additional enforcement powers. In the period between 2012 and 2015, rightholders in the EU started building a new case against online platforms and their users. Instead of targeting internet service providers which had been on the focus of the measures contained in the SOPA and ACTA proposals, this new case focussed on “user generated content” platforms, of which YouTube was the primary example.
Driven largely by the music industry — but supported by organised rightholders from across the spectrum — European rightholders developed the “value gap” narrative that claimed that UGC platforms where generating value from the unauthorised upload of copyrighted content by their users that they failed to pass on to the legitimate recipients — the rightholders. To address this supposed “value gap” rightholders demanded legislative measures that would strip UGC platforms of the liability privileges that shield them from legal responsibility for content uploaded by their users.
These liability limitations established by the 2001 E-Commerce directive that ensure that platforms are not liable for content uploaded by their users as long as they follow a notice and takedown procedure became the main target of the rightholder lobby which managed to convince the EU Commission to include a proposal to make large UGC platforms directly liable for any content uploaded by their users in its proposal for a Directive on Copyright in the Digital Single Market that was unveiled in the fall of 2016.
Article 13 of the Commission proposal contained language that would have required large UGC platforms to “take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers.”
In other words Article 13 — as proposed — would have required platforms to either conclude licensing agreements with rightholders for all content uploaded by their users — an impossible demand — or to block uploads of works identified by rightholders.
Digital and civil rights advocates quickly identified the provisions in Article 13 as the most problematic aspect of the Commission’s proposal for the CDSM directive and started campaigning against what — in their eyes – amounted to the introduction of mandatory upload filters in the EU.
The campaign to stop upload filters and to delete Article 13 that took shape over the following two and a half years recalled many aspects of the previous fights against SOPA and ACTA. As in the revolt against SOPA, the coalition fighting to delete Article 13 included civil society advocacy groups, public interest organisations and a wide range of online platforms.
Similar to the mobilization against ACTA, the coalition managed to mobilize large groups of supporters both online — more than 5 million people signed a petition against Article 13 — and offline — in early 2019 more than 200.000 people across Europe took to the streets. The tools and tactics used by the opponents of Article 13 included many of the tools first deployed in the revolt against SOPA — ranging from website blackouts to mass email and social media campaigns directly targeting the responsible law makers.
But in the end the campaign to delete Article 13 failed to achieve its objective. During the final legislative showdown — the vote in the EU parliament in April 2019 — a proposal to have a separate vote on Article 13 of the directive was narrowly rejected with a margin of just five votes. As a result it never came to a yes-or-no vote on Article 13 and the European Parliament adopted the entire DSM directive including a heavily modified version of Article 13 with a clear majority.
Learning from Article 13
Even though it ultimately failed at achieving its objective, the campaign against Article 13 clearly showed excessive copyright enforcement measures have not lost their mobilization potential among internet users. So what was different here?
The biggest difference between the campaigns against SOPA and ACTA on the one side and Article 13 on the other side is that the latter was just one measure embedded in a much bigger copyright reform package — the proposed Copyright in the Digital Single Market directive. Where SOPA and ACTA immediately stood out in their one-sidedness and were thus much easier to discredit, the DSM directive was a multi-dimensional legislative package that contained a wide variety of measures that appealed to different sets of stakeholders.
In addition to Articles 13 and 11 — a new neighboring right for press publishers — which reflected demands by organized rightholders, the directive also contained proposals for new copyright exceptions benefitting libraries, educational and research institutions and a number of measures strengthening the position of individual creators vis-a-vis publishers and other intermediaries. And while Article 11 and 13 were both highly controversial, these other measures enjoyed support from lawmakers across broad parts of the political spectrum.
As a result of this divide-and-conquer approach, support for the project of adopting the directive came from a diverse set of stakeholders who pushed to see “their” issues adopted. Meanwhile lawmakers (and the EU Member States) were bitterly divided between different camps supporting different elements of the directive while rejecting others. These divisions manifested themselves not along party lines but split all major political parties down the middle.
In this relatively unstable political climate there never was as clear majority for abandoning the overall project of adopting the directive and so the vast EU legislative apparatus did what it has been designed to do: step by step it pursued its objective towards producing compromise between the various political groups which ultimately resulted in the adoption of the directive at the very end of the legislative term.
User rights as a by-product of the fight against upload filters?
While the final vote on the directive was very much perceived as an all or nothing decision — the proponents of Article 13 united under the “yes to copyright” banner while the opponents proclaimed to “save the internet” — a retrospective analysis of the adopted measures paints a very different picture.
During the course of the legislative wrangling, Article 13 underwent significant changes to accommodate concerns expressed by its opponents. The Final version of Article 13 (now Article 17 after a renumbering of the provisions of the directive) is substantially different from the Commission’s original proposal. And while it shares its two main elements — the removal of the general liability privilege for UGC platforms and a de-facto requirement to deploy upload filters — it has accumulated a number of substantial procedural and substantive user rights safeguards that have not been present in the original version.
Even more so Article 17 has become a vehicle for harmonizing key user rights by making the previously optional exceptions for quotation, criticism, review, parody, pastiche and caricature mandatory in all EU Member States. In addition, it now imposes obligations on Member States to ensure that these rights can effectively be exercised by users of UGC platforms. All of these amount to tangible improvements for internet users in the EU (for platforms this picture is more complicated).
So while the effort to prevent the mandatory imposition of upload filters has clearly failed, the collision of massive SOPA style mobilisations with the EU’s compromise focussed legislative process may have created a rather unexpected outcome: the codification of important user rights and a framework for regulating the use of automated content moderation technologies that had were already in widespread use but so far deployed purely at the discretion of the online platforms.
As such, what had originally been perceived as a bitter loss breaking with the tradition of the earlier successes of the mobilisations against SOPA and ACTA, seems more and more like a win for internet users in an admittedly ugly disguise.
This Techdirt Greenhouse special edition is all about the 10 year anniversary of the fight that stopped SOPA. On January 26th at 1pm PT, we’ll be hosting a live discussion with Rep. Zoe Lofgren and some open roundtable discussions about the legacy of that fight. Please register to attend.