The infosphere is aflame with a new battle in an old war: how copyright should be handled on the Internet.
The Guardian has background:
It is an argument that has drawn in the likes of Paul McCartney, Plácido Domingo and the Vienna Philharmonic, as well as pioneers of the internet from Tim Berners-Lee to the founder of Wikipedia, Jimmy Wales.
Fought with hashtags, mailshots, open letters and celebrity endorsements, the battle over the European Union’s draft directive on copyright heads for a showdown this week.
After two years of debate, members of the European parliament will vote on Wednesday on the legislation, which could change the balance of power between producers of music, news and film and the dominant websites that host their work.
[…]Critics claim the proposal will destroy the internet, spelling the end of sharing holiday snaps or memes on Facebook. Proponents are exasperated by such claims, described by German Christian Democrat Axel Voss as “totally wrong” and “fake news”.
Two sections in particular are controversial: Articles 11 and 13. Both sides (both sides!) are being very hyperbolic about these. The gist is that groups like the Electronic Frontier Foundation and people like Cory Doctorow say these are “internet-destroying regulations,” and the proponents’ response (from what I’ve seen on Twitter) is to paint all opponents as paid industry shills who hate artists. I’ve attempted here to come up with what I hope is an even-handed summary. I Am Not A Lawyer, so please tell me what I’ve gotten wrong.
This is a bit long, so click through if you’re interested. Note of course that these are EU laws, but so is the GDPR, and we’ve all experienced the effects of that.
Article 11
In brief, Article 11 would give news organizations copyrights over ‘snippets’ of their articles, including the headline, lede, and thumbnail presentation. For example, the Guardian would have the right to charge Google News for this aggregation:
Supporters say (perhaps naively) that this would help news producers get paid for their content. Opponents deride it (definitely disingenuously) as a “link tax” that will destroy sites like Wikipedia. I found what seems like a decent analysis from anti-plagiarism activist/expert Jonathan Bailey, who says:
Paragraph 1 of Article 11 simply reads as follows:
Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.
Article 2 and 3 referred to in the paragraph are simply the reproduction right and the right to communicate a work to the public.
However, the definition of “information society service providers” is a bit thornier to get through. That definition is found in this directive, which describes it as “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.”
What is and is not considered such a service gets extremely complex quickly (with many exceptions carved out). However, key examples include “Web shops and marketplaces, search engines, online advertising, video sharing sites, blogs, hosting, video-on-demand, online consultancy, online marketplaces, social networking, etc.”
[…] exemptions do not include a fair use or fair dealing.
Such laws have been tried in Spain and Germany. In Germany, Google made News opt-in: if you wanted to be included in their aggregations, you had to let them do it, and for free. The result was that most sites opted in. This wasn’t an option under the Spanish law, so Google simply shut down their Spanish news site. According to a study commissioned by Spanish publishers,
[I]n the short-term, the study found, the law will cost publishers €10 million, or about $10.9 million, which would fall disproportionately on smaller publishers. Consumers would experience a smaller variety of content, and the law “impedes the ability of innovation to enter the market.”The study concludes that there’s no “theoretical or empirical justification” for the fee.
It might also make links and excerpts such as the ones I’ve provided here illegal without licenses.
Article 13
Currently, the burden of not posting something copyrighted on a platform like YouTube falls on the user. If a user does publish such a thing, they can be penalized under laws like the still-controversial Digital Millennium Copyright Act and forced to take the content down. (Obviously this is an American law, but that’s the context I’m familiar with.) Article 13 would shift that burden to the platform. YouTube and sites like it would become responsible for any copyrighted material published by their users.
You may be familiar with the debate over what, exactly, a ‘platform’ like YouTube or Twitter is. Are they more like a newspaper or a community bulletin board? Article 13 gets right to the heart of this, with a clear answer: they’re responsible for their users’ content; they’re definitely not a corkboard in the quad. Bailey again has a good summary of this, but it’s fairly complex stuff with a lot of carve-outs, and I’d recommend reading through that link. (Notably, it excludes things like blog comment sections, which is good, since sometimes people excerpt entire articles.)
It really comes down to this:
The larger impact is the shift from filtering as a tool of expediency to an obligation.
Sites like YouTube already use automated filters to find and report/remove copyrighted content. (This can have hilarious effects like removing video lectures on fair use.) However, they use these filters voluntarily, to reduce the volume of incoming complaints. Article 13 would, most likely, result in pre-filtering of user content. Opponents deride this as a “censorship machine” and “meme-killer,” saying that it would automatically tag remixes, or things like not-sure-if Fry, as copyrighted material, and prevent them from going up.
This is probably not true! But any filter, automated or not, is going to have false positives; making such filters obligations will increase the false-positive rate, since suddenly a false negative would have a penalty, and that is how filters generally work. So really, it’s a question of what kind of filters we want, when we want them used, by whom, and at what cost.
Tricky stuff! But I thought I’d bring it to everybody’s attention. Anybody care to weigh in? I usually fall on the same side as the EFF but it seems like they’re being very over-the-top here. Article 13 may just be a proxy war between big production studios and Google.
TenguPhule
The only certain thing about this is that nobody is going to agree on it.
Baud
Article 11 sounds like it might help Google because news sites can’t afford not to have their stuff come up but might charge smaller providers
Article 13 sounds bad although I haven’t followed your advice about reading the more detailed analysis.
Excellent summary.
Baud
It’s also nice to have someone other than the U.S. for once take the heat for destroying Internet freedoms.
TenguPhule
@Baud:
I’m sure Trump will find a way to make things worse.
different-church-lady
The first one is a parasite, and the second a social cancer. But please, continue…
NotMax
Meanwhile, in a different ring of this circus, Two Ottawa lawyers have filed a proposed $80-million class-action lawsuit, alleging that Google’s search engine allows Internet users to discover names that are supposed to be shielded by court-ordered publication bans..
Baud
Major, what recourse does the user have if he or she believes that the work is not copyrighted or covered by fair use?
Schlemazel
13 seems like a really bad idea. It appears to make a website like Facebook or Youtube liable for crap any nobody wants to upload. Yes, they do have some filters but we have all experienced those failures (at least on FB) and similar as the motivated figure out how to evade detection. (like putting ‘*’s between letters of ED meds or the new one is pron posts but the participants are clothed so the evade FB filters.
I could see holding them accountable if they were aware of copyright violation and did nothing or if they made no effort to control content. I think most of these guys are at least making a reasonable effort & should not be punished for the occasional slip up.
11 appears to be a non-issue to me
Caveat: IANAL but I spend my workday dealing with IT issues and am acquainted with some of what is going on behind the curtain
Baud
@NotMax: If the allegations are true, I’d be curious to learn how Google links up the name with the news stories.
Schlemazel
@different-church-lady:
You are not wrong, but that is not necessarily a fault of the platforms but of humans. Humans are parasites and social cancers. Those platforms merely give them a wider reach.
“Just because your voice reaches the ends of the earth does not mean you know any more than when it only reached the end of the bar” Edward R. Murrow
TenguPhule
It must be Infrastructure Week.
different-church-lady
@Schlemazel: Yeah, well I ain’t all that keen on humans either.
TenguPhule
@Baud:
Algorhythms.
Baud
@TenguPhule: That explains nothing.
Major Major Major Major
@Baud: I don’t know. I do know that if you’re dealing with DMCA issues, most users would rather just sit down and shut up, since the lawyers all work for the production companies and the fines are massive. I wish I could remember the name of the famous free speech advocate whose lecture on fair use kept getting taken down. He’s not the only one it happened to, but it’s a famous incident. And he only got it back up because he was famous and had good representation.
Schlemazel
@Baud:
You can email the claimant and argue your case and if they agree with you it goes back up. If they disagree with you, You go to the mattresses. The law allows people monetary compensation if the claimant acted in bad faith (or should have known better)
Again: IANAL
Schlemazel
@different-church-lady:
Humans are what is wrong with this world
different-church-lady
@Schlemazel: And autotune.
AThornton
O/T Cognitive Dysfunction Moment
Read that as Grossdeutschland Panzer Regiment because I’ve been reading all too much David Glantz recently.
We now return you to your regularly scheduled blog, already in progress
Schlemazel
@Schlemazel:
Baud
@Major Major Major Major: Right. But my guess is that the platform providers would be even more aggressive than content owners under the DMCA in flagging potential violations.
@Schlemazel: Bad faith is very hard to prove, though. Like I said, I think platform provides will end up being more aggressive than content owners in filtering anything that looks iffy.
burnspbesq
I can see 11 being problematic without a fair use exception; if a link is within the definition of a “snippet,” then posting links in the comments here could be seen as problematic. Which makes it an opportunity for content creators: “subscribe to our online newspaper and we agree that you can link all you want.”
I’m not an IP lawyer, and 13 is confusing as shit, so I’m sticking to my default position, I.e., if it forces streaming services to fairly compensate musicians I’m in favor of it.
Major Major Major Major
@Baud: yes. The false positive rate would go through the roof. They’re currently tuned in the opposite direction.
Doug R
I keep thinking- I pay my ISP a pile of cash every month-they log every site I visit. If they are now allowed to throttle my web now that net neutrality is gone, why not manage royalty payments too?
Schlemazel
Sorry to go off thread but this is too good not to put up repeatedly. I’ll do it again in an open thread.
It happened at the same rally as the plaid shirt kid getting kicked out
Girl wipes her nose on the flag
https://www.c-span.org/video/?c4748046/girl-wipes-nose-american-flag
#MAGA!!!
Enhanced Voting Techniques
@TenguPhule: Combine that with the recording of Trump stumbling into a White House Communications staff meeting with no pants and rambling about how Hillary is really getting it over the Russian scandal, yes, it’s the start of another Infrastructure Week.
Gvg
@Baud: I speculate that Google doesn’t do anything to NOT link names and always tries to link. Finding a way to monitize the Internet has actually been hard. Currently they pay per click but the sold ads payoff is less than coupons in the paper were back when. In other words people click but they don’t buy as often. That’s why they are trying all these ways to manipulate.
As for instance pizza stores find internet adds don’t result in much business, the Internet is trying harder to find your keys and does all these link purposed a logarithms. They are ignoring social rules they used to follow. Sometimes ignoring laws. Made worse by the facts of not all even in the same country.
I get a lot of stuff I was never interested in but other stuff is things I shopped for a no bought years ago. So I don’t need another one. Again mis targeted ads are not good.
I don’t see that they built anything to exclude data even if you say you want privacy.
Baud
@Gvg: You’re talking about their business strategy. My question is about how they actually do it technically. The allegation is that they can link a name to a story even if the story doesn’t mention the name. If they aren’t associating the name with the story based on the content of the story, they must be doing it some other way.
Doug R
Seriously though, a lot of this sounds like the Burners argument against TPP, too tight rules on copyright. No one else here has a problem with Google scooping up headlines for free and then selling ad space on top? Or places like Raw Story that post rewritten content?
Baud
@Doug R: I believe any site has the ability insert code that will prevent Google from indexing their site. If they haven’t done so, then they don’t seem to have a problem with it.
Should website be required to pay google each time someone access them through Google?
Roger Moore
@Schlemazel:
Good thing she didn’t kneel during the national anthem or run a private email server.
Major Major Major Major
@Doug R: I think 11 is well-meaning but needs some tweaking. 13 seems like a dramatic reinterpretation of how users interact with websites, which should probably not be discussed simply as a matter of people uploading music videos to YouTube.
@Baud: Google is not required to honor such code, of course.
different-church-lady
@Major Major Major Major: Around 2005 we had an issue where Google cached something that we had put on a website that was password protected. So Google don’t give a shit, Google just takes what it wants.
Baud
@Major Major Major Major: You would know better than me, but I thought Google did honor that code. I see no harm in making it a legal requirement for search engines to honor website owners wishes, however.
Major Major Major Major
@different-church-lady: If it was password-protected, how did a crawler get to it? That doesn’t sound like Google’s fault.
@Baud: They do, but they don’t have to. I think that would be a sensible regulation, but the devil’s in the details of course.
different-church-lady
@Major Major Major Major:
That’s what we never figured out. But somehow it turned up in a search that an overseas division did, and they got their hands on the document from Google’s cache without ever having the password, or any access to our site.
Should also note the document was never even attached to any HTML, it was just a sitting there on the server, only available to someone who knew the direct link.
It was a confidential document and I was a naive contractor. My client got called into the office. I was lucky he forgave my mistake.
Roger Moore
@Major Major Major Major:
You took the words right out of my mouth. If the server was misconfigured badly enough that Google could index it even though it was supposed to be password protected, I’m deeply suspicious that the
robots.txtwasn’t properly configured, either.Mike J
I had to stop reading Doctorow back in the 90s. Generally speaking, he’s hyperbolic to the point of dishonesty. I don’t know about this particular case.
different-church-lady
@Roger Moore: They did more than index it: they took it and put it on their own servers.
Mandalay
@burnspbesq:
I still don’t understand how Limewire got shut down and forced to fork up over $100 million for copyright violation, yet anyone can upload (almost) anything to YouTube and life goes on, while Google creams it from the ad revenue.
If I upload a song by some well known current performer to YouTube, and it gets ten million views, does Google give any money to the performer or their recording label?
And what if I am a fairly unknown performer whose “official” videos have been uploaded to YouTube without my consent…can I demand that YouTube take them down without me having to go legal on them?
TenguPhule
@Major Major Major Major:
The password was 1-2-3-4-5
Major Major Major Major
@different-church-lady:
You don’t actually know that. It’s quite possible somebody posted a link to it that was publicly available. Even if it was just for a short time (or over google chat or something, I dunno if they index that), it could have been crawled.
Still, they should take things down if you ask nicely and can prove ownership. Should == ‘ought to’, not ‘will’.
ETA or what Roger said.
Baud
@Mandalay:
Such demands are inherently legal. But you can probably find a standard DMCA notice on the web and send it to Google.
different-church-lady
@Major Major Major Major:
There were only two people who knew it was there — me and the guy I was trying to get it to fast (and he wouldn’t have shared that link with anyone, never mind write actual code linking to it).
Like I said, naive — it was the early days when there was no easy way of sending a megabyte file via email or other file sharing services. We were using the site kind of like an FTP site, to share production photos and scripts back and forth.
Baud
@different-church-lady: If the transmission wasn’t encrypted, I wonder if the document got cashed on an intermediate server that Google had access to.
(I’m in no way a techie, so there’s a good chance what I said doesn’t make any sense.)
Roger Moore
@different-church-lady:
They do that with everything they index. That’s why you can get stuff from their cache even when the server it came from is down.
different-church-lady
@Roger Moore: Which ought to be, like, you know… illegal.
Baud
@Baud: cashed = cached
Baud
@different-church-lady: Why?
Major Major Major Major
@Baud: if it was password protected SFTP then it would have been encrypted. If public FTP with a private link, then we must remember the old adage: “security through obscurity is neither”
different-church-lady
@Baud: Because it’s not theirs to make available to the public on their servers.
debbie
I’m sure my understanding of this is overly superficial, but I call bullshit. The links bring traffic to your site, as do recommendations. You can’t buy that kind of advertising. Monetizing snippets and links to the detriment of traffic seems stupid and short-sighted to me.
Baud
@different-church-lady: If the content owner doesn’t want Google copying their content, there must already be some way they can prevent it. I can’t imagine Google’s caching is covered by fair use.
Baud
@Baud: Apparently, I’m wrong. It’s fair use.
https://www.eff.org/deeplinks/2006/01/google-cache-ruled-fair-use
different-church-lady
@Baud:
Well (a) I would think not giving Google the fuckin’ password would be a start, and (b) why should it be opt-out instead of opt-in?
Chris T.
@TenguPhule: Al Gore rhythms? Gasp! He did invent the Internet!
Baud
@different-church-lady: (a) is unlikely to be Google’s fault, as discussed.
(b) is actually an interesting issue that seems to have been settled legally. See link at # 54.
Major Major Major Major
@debbie: it sort of seems like they’ve decided to swap their disastrous ad-based business model for a disastrous rent-based business model.
different-church-lady
@Baud: Settled legally, perhaps, but to my mind neither logically nor ethically.
rp
I haven’t followed this closely, but I do know that Cory Doctorow is an idiot.
FlyingToaster
I’m looking at 11 in horror; the fair use exemption is how a lot of us prove our points in position papers to clients. Without that, we are surely fucked. This will cost me (and damn near everyone) money.
13 is worse; how the F can YouTube or Vimeo or Instagram or whoever filter for video from your barbeque that has the stereo in the background? Holy fuck this is a bad idea…
debbie
@Major Major Major Major:
Yeah, I don’t get it. The news outlets should be grateful to Google. At least buy her lunch!
Major Major Major Major
@rp: Basically everybody I know who’s met him hates him.
Corner Stone
@Major Major Major Major:
He probably hates all the people you know that have met him.
Fair Economist
In principle, I like both of these. For Article 11, news sites should at least have a chance at making the money from ads off their material. In general, (and not just in news) aggregators on the internet kill earnings for those they aggregate. Google’s response to the German laws perhaps indicates this particular law is lost anyway and it won’t matter. (it *would* matter if Google weren’t such a monopoly, which is a matter for another day.)
For Article 13, it’s hard to find a better enforcer of copyright than the hosting sites, so I’m fine with them doing it. I don’t have a problem with people being unable to post a rip of Black Panther or whatever. There could be some problems with suppressing discussion of copyright or fair use exemptions, but they should be manageable by human review and that’s really how it should be – some neutral party really should review something for fair use *before* it goes out to 2 million people.
In general I support strong enforcement of copyright laws. The main problem with copyright law today is that it is far too strict, especially in the time limits. The artist should have the right to earnings for a reasonable time – IMO 25 to 33 years – and then it should be public domain. Under current law copyrights generally run more than a century and that’s beyond ridiculous.
Full disclosure – if this really shut down “memes” (I doubt it) I wouldn’t mind. I find them annoying and usually a distraction from interesting discussion. It’s often hard to find the people actually saying something amidst all the jokey pics and animated gifs.
Schlemazel
@Major Major Major Major:
John Scalzi seems to hang out with him a lot. I know zero about him or his work but Scalzi is a very good guy
Fair Economist
@debbie:
Except now most people just look at summaries on Google news for 90%+ of stories and never go to the source sites. News sites have indeed lost a tremendous amount of money from aggregation. TPM has some detailed discussions of it and their decision to switch to subscription as the only hope of survival.
In an ideal world there would be lots of competing aggregators and a law like this would make a lot of the money Google currently skims off go to the content generators. It would behove the EU for its nations to create some national aggregator sites to provide some competition.
veniceriley
*Wallace Shawn voice* Alls I know is …
1) I’m old enough to remember when Garth Brooks wanted royalties when a used CD was re-sold.
2) All the youtube content creators I know (And I know many many small, midsized, and large creators) used to have fits with YouTube taking their videos down do to a DCMA notice- many of which were bogus and came from Russia, where they would first steal their whole video for another channel, then file with youtube that you copied their content, instead of the reverse. Then youtube would take yours down and it would take forever to get resolved. Meanwhile, Russians would get all the views on content you originally made.
Major Major Major Major
@Fair Economist:
But that’s the problem, isn’t it? Humans don’t scale, and the amount of content posted (most of which is not a rip of Black Panther) grows daily.
NotMax
I want my 1998 internet back.
:)
Citizen_X
The whosiwhatsit now?
Fair Economist
@Major Major Major Major: Then people won’t be able to post content with similarities to existing copyrighted material obvious to automatic detection. I don’t see what’s the problem other than people will have to turn off the stereo for Youtube video. That’s hardly the end of the world.
Major Major Major Major
@Fair Economist: some of the most popular videos are movie and video game reviews/dissections which are clearly fair use but would also obviously get flagged for having copyrighted footage. As I wrote, it’s a question of whether you want more false positives or false negatives in your automated filtering. Humans will have to handle the appeal process, and again that doesn’t scale.
NotMax
@Major Major Major Major
*cough* Twitch *cough*
Major Major Major Major
@NotMax: Separate but related, yes.
Fair Economist
@Major Major Major Major: The time to look at a review and say “yep, fair use” is considerably less than the time to view the material, write a review, film it, and edit it down – and that is all human time. So it’s not much increase in the amount of human time to create a review or dissection.
In addition, I think Google could write AI code capable of recognizing a review or dissection if they actually chose to. It would have a very distinctive signature compared to a rip, or to somebody using video to cover up reproducing a music performance. Most of the content would be original, with only brief snips from the copyrighted material.
Roger Moore
@Major Major Major Major:
Humans actually scale just fine. The problem is that hiring enough humans to do the job costs money, and Google, Facebook, et. al. want to keep their profit margins up by automating everything.
Roger Moore
@Fair Economist:
And by the time somebody has done five reviews on their channel, you can guess that the video they describe as “Review of Foo” is probably another review.
Major Major Major Major
@Roger Moore: This is part of what they mean when they say “humans don’t scale,” but there’s also sort of the content explosion problem. Hiring a growing number of people to police a growing amount of content is probably not a durable solution to the issue. If we’re going that route, there’s going to be a de facto cap on the amount of content that these sites can broadcast. And then we get into the issue of determining whose stuff goes up, etc.
Or would this bust monopolies and encourage competition? Maybe! These things are worth thinking about. However, it is still true that humans don’t scale well, compared to the likely growth of stuff; some people even get PTSD from policing more extreme forms of content.
@Fair Economist:
This is a case where it would probably cost them less money to just hire people.
A pre-emptive filtering scheme is going to have a lot of false positives which will have to be handled by a human appeals process. This is not a value judgment.
different-church-lady
@Major Major Major Major:
Just ask East Germany.
We already have too much crap anyway.
Ivan X
@different-church-lady: Concur.
Bill Arnold
@Fair Economist:
I’m a big fan of The Wire (reuters, and with photos turned off) for getting an instant feeling for the news, e.g. if i see people looking concerned. And similarly, google news (not logged into google), and for getting a instant refresh of the zeitgeist (of the hour, if there is another word for that), hvper, free version, is an interesting meta-aggregator.
Do people just skim the headlines for real? Rarely can I look at e.g. hvper and not end up with 10 or more open browser tabs.
Matt
@Schlemazel:
IIRC the law allows the person claimed against to sue for that compensation – but good luck getting money from a big media company.
wizened_guy
IANAL, but this is an area of professional expertise for me, so let me add a few additional points, concerning areas that have not gotten as much attention as the headline-grabbing stuff about memes, etc.
1. The sort of scalable automatic content recognition technology that would be required to effectively implement the requirements of Article 13 is not widely available today. Some big platforms — YouTube (Google), Facebook — have built their own, proprietary tools, at a very high cost. But it’s not like every Tom, Dick & Harry “information society service provider” is going to be able to buy the equivalent of Content ID (YouTube’s system) off the shelf. Should Article 13 go into effect it would certainly create an incentive for entrepreneurs to develop such offerings, but it will take time and significant investment. Unless there’s some sort of phase -in of the requirement the result could be chaos. The short term effect would likely be to further entrench the likes of YouTube, Facebook and other large platforms as they would be the only legally compliant options.
2. A similar problem lurks within Article 11. The whole “link tax” thing is bogus. Hyperlinks are specifically exempted. But the language would seem to require services such as search engines to secure licenses from any and all publishers whose content they might index. That’s going to require the development of automated licensing protocols at a scale that simply doesn’t exist at this point, and given the legal complexities involved in trying to automate contractual arrangements, it could be decades before it does.
Bottom line: Regardless of the policy merits of the directive, there is an air of unreality to it that could make implementation a nightmare.