Article 13
This section of
the directive will completely reconfigure websites'
responsibilities when it comes to enforcing copyrights.
Until now, the
so-called
Ecommerce Directive has given
online platforms broad protection from being subject to
copyright penalties when they simply acted as a conduit for user
uploads.
It's very
similar to the laws in the U.S. that exempt YouTube from
penalties as long as its making its best effort to take down
infringing material when it's reported.
YouTube uses an
automated content recognition system combined with an army of
human beings to review the material users' upload. It costs the
company millions of dollars to do this.
Critics of
Article 13 say that every popular platform - estimated to mean
the top 20 percent - that allows users to post text, sounds,
code, still or moving images will need one of these systems.
Last week, 70
of the most influential people in the field of technology
signed a letter opposing
Article 13.
Pioneers like
Cerf and Berners-Lee were joined by experts in virtually every
facet of the online world to say that the legislation would harm
freedom of speech, education, expression, and small businesses
while giving major platforms that already heavily monitor their
service a distinct advantage.
Activist,
author, and special advisor for the Electronic Freedom
Foundation, Cory Doctorow has
written
extensively about the potential
implications of Article 13
since it became a crisis in the last few months.
He told
Gizmodo over the phone that as it's written, the legislation
will cost "hundreds of millions" of dollars in penalties for
platforms that can't handle monitoring, and he's confident that
companies like
Google and
Facebook will be the only ones
that can survive.
The big
question around Article 13 is its vague requirement that
websites use "appropriate" measures to prevent copyrighted
material from ever appearing on their service.
It suggests
"effective content recognition technologies" be used several
times without explaining what that means, how it would work, how
claims would be filed, or anything practical.
For critics
like Doctorow, the natural conclusion is that big platforms will
use their own system and some sort of centralized system will be
required for the rest.
Because there's
no outline of how such a system would work, there are no
penalties for people who falsely claim ownership over the
content.
In the event
that someone uploads a claim over the complete works of
Shakespeare - which is in the public domain - a platform would
have to individually decide if that claim is worth taking a risk
and allowing someone else to quote a sonnet by the bard.
If the platform
doesn't want to take the risk, someone fighting a copyright
claim would have to go to court.
As we see all
the time, algorithms by the richest companies in the world are
terrible at doing their jobs.
This week,
we saw YouTube blocking
educational videos from MIT and the Blender Foundation because
they were erroneously flagged by its piracy filters.
In the past,
we've seen bullshit piracy claims over
white noise and birds chirping.
Also, what's
possibly the most important problem with Article 13 is that it
makes no exceptions for fair use, a foundation of the internet
an essential caveat in the law that allows people to remix
copyrighted works.
Article 11
Article 11 has
been variously called the
link tax or the
snippet tax.
Designed to
mitigate the power over publishers that Google and Facebook have
amassed in the last decade, it codifies a new copyright rule for
linking to news organizations and quoting text from their
stories.
Online
platforms will have to pay for a license to link out to news
publishers, and this will theoretically help support
organizations that are vital for public information and drive
users to their homepages.
That all sounds
decent in principle, but Article 11 doesn't bother to even
define what constitutes a link. Details will be left to the 28
individual countries in the EU to figure that out.
That opens the
door for political abuse of how news is spread in each country,
and it will likely have the opposite of its intended effect.
Google can
afford a license, there's no guarantee smaller organizations
can. Member of European Parliament Julia Reda is firmly
opposed to Article 11 and 13.
She recently
wrote on
her website:
"Instead of
one Europe-wide law, we'd have 28, with the most extreme
becoming the de-facto standard:
To avoid
being sued, international internet platforms would be
motivated to comply with the strictest version implemented
by any member state."
In response to
her MEP counterpart Alex Voss's
defense of Article 11, Reda
gave
The Next Web an illustration of
how the differences between countries could play out:
The
sentence 'Angela Merkel meets Theresa May,' which could be a
headline of a news article, cannot be protected by
copyright, because it is a mere statement of fact and not an
original creation.
Mr. Voss
said repeatedly that he wants these purely factual
statements to be covered by Article 11, that the protection
granted to press publishers will therefore be much broader
than even what the journalists themselves get.
Reda also
pointed out that egregious sampling or wholesale theft of news
content is already illegal under current copyright law.
There's no
reason to believe that Facebook with its fancy link license will
ever face penalties for users posting an entire article on their
wall. But when Facebook decides it doesn't like your particular
political point of view, it'll be a lot harder for you to start
a small platform and express it.
The
consequences of Article 11 and Article 13 remain a matter of
speculation, but the nature of the legislation - both its design
and its vagueness that makes it ripe for abuse - make it all but
inevitable that they will leave the internet torn and tattered
in its wake.
Here are some
likely victims.
Memes
Even if you
think that people who pirate music should be executed and all
news organizations are the devil, you probably like memes.
Well, whoever
took a picture of that one guy
looking at that one girl instead of the other girl, will be
having a field day running around filing complaints against any
platform that uses it without permission.
No fair use
means you'll have to go shoot your own photo to caption and make
it clear that anyone is allowed to further caption it in the
pursuit of creating a meme.
Artists
Remixes
and mashups are fucked.
Any artist that
relies on fair use to make transformative works is
fucked.
And the
Metallica's of the world who love running around policing where
their work will have platforms, and their grunts making sure to
pull down that birthday party video of you and your friends just
trying to have a good time while some song was on the radio.
Are you wearing
a Rick and Morty shirt in that perfect profile pic?
Sorry, the
stupid algorithm flagged it, and now it's gone.
Politics
Aside from the
potential of individual countries in the EU to decide what is
and isn't news, copyright claims could be used to suppress
material for political purposes.
Doctorow gave
us the example of a politically sensitive video uploaded to a
platform just days before an election.
Let's call it
the pee tape. If the target of the pee tape were to know
it was about to be released, it could be uploaded to a content
monitoring platform with a copyright claim lying in wait.
The censorship
filters would catch it before it was seen by the public, and the
election could come and go while a legal fight plays out behind
the scenes.
There's also
the issue of surveillance. We already accept that companies like
Facebook hire people to comb through our shit while trying to
identify infringing content.
The EU is
trying to force many more companies to deputize a bunch of
sleuths, human and algorithmic, expand this shadow surveillance
state that monitors everything we post on these platforms.
As Doctorow put
it to us,
"Any kind
of censorship in the modern age is surveillance."
Etc.
There are
numerous other bad implications that have been flagged by
activists,
academics,
human rights groups, and
online businesses.
We didn't even
discuss Article 3, which has artificial intelligence startups
sweating bullets. I'd urge you
to call your representatives, but we mostly serve an audience in
the U.S., where we largely lack the power to force lawmakers'
hands.
We don't know
if this will have the ripple effects we've seen with the
GDPR privacy rules that are
slowly being picked up as the global standard.
But Doctorow
told us that implementation of the copyright directive adopted
on Wednesday will be just like GDPR's
chaotic rollout last month.
"Everyone
is going to forget about it" during the waiting period
before the law is implemented, "and in two years they're
going to wake up and say holy shit!"
