On Friday, I wrote about all of the many problems with the link tax part of the proposed EU copyright directive -- but that's only part of the problem. The other major concern is around mandatory upload filters. As we discussed with Julia Reda during last week's podcast, the upload filters may be even more nefarious. Even the BBC has stepped up with an article about how it could put an end to memes. While that might be a bit of an exaggeration, it's only just a bit exaggerated. Despite the fact that the E-Commerce Directive already makes it clear that platforms should not be liable for content placed on their platforms by users absent any notice and that there can be no "general monitoring" obligation, the proposal for Article 13 would require that all sites have a way to block copyright-covered content from being uploaded without permission of the copyright holder.
As per usual, this appears to have been written by those who have little understanding of how the internet itself works, or how this will impact a whole wide variety of services. Indeed, there's almost nothing that makes any sense about it at all. Even if you argue that it's designed to target the big platforms -- the Googles and Facebooks of the world -- it makes no sense. Both Google and Facebook already implement expensive filtering systems because they decided it was good for their business to do so at their scale. And even if you argue that it makes sense for platforms like YouTube to put in place filters, it doesn't take into account many factors about what copyright covers, and the sheer impossibility of making filters that work across everything.
How would a site like Instagram create a working filter? Could it catch direct 100% copies? Sure, probably. But what if you post a photo to Instagram of someone standing in a room that has a copyright-covered photograph or painting on the wall? Does that need to be blocked? What about a platform like Github where tons of code is posted? Is Github responsible for managing every bit of copyright-covered code and making sure no one copies any of it? What about sites that aren't directly about the content, but which involve copyright-covered content, such as Tinder. Many of the photos of people on Tinder are covered by copyright, often held by a photographer, rather than the uploader. Will Tinder need to put in place a filter that blocks all of those uploads? Who will that be helping exactly? How about a blog like ours? Are we going to be responsible to make sure no one posts a copyright-covered quote in the comments? How are we to design and build a database of all copyright-covered content to block such uploads (and won't such a database potentially create an even larger copyright question in the first place)? What about a site like Airbnb? What if a photo of a home on Airbnb includes copyright-covered content in the background? Kickstarter? Patreon? I'm not sure how either service (which, we should remind you, both help artists get paid) can really function if this becomes law. Would they need a filter to block creators from uploading their own works?
And that leaves out even more fundamental questions about how do filters handle things like fair use? Or parody? To date, they don't. Now making such filters mandatory even for smaller sites would be a complete and total disaster for how the internet works.
This is why it is not hyperbolic at all to suggest that this change to how the EU looks at copyright could have a massive consequence on how the internet functions. At the very least, it is likely to limit the places where users can participate, because that will price out tons of services. It takes the internet far, far away from its core as a communications platform and moves it more and more towards one that is broadcast only. Perhaps that's what the EU really wants, but at least the discussion should be honest on that point. So far, it is not. The debate goes over the usual grounds, claiming that copyright holders are somehow being ripped off by the internet -- though that is stated without evidence. If the EU wants to fundamentally change how the internet works, it should at least justify those changes with something real and be willing to explain why those changes are acceptable. To date, that has not happened.
Internet companies are trying to speak out about this, but many are so busy fighting other fires -- such as the net neutrality repeal here in the US -- that it's difficult to run over to Europe to point out just how moronic this is. Automattic (the people who do Wordpress) have put out a big statement about the problems of this plan that is well worth reading:
We’re against the proposed change to Article 13 because we have seen, first-hand, the dangers of relying on automated tools to police nuanced speech and copyright issues. Bots or algorithms simply cannot determine whether a blog post, photo in a news article, or video posted to a website is copyright infringement or legitimate use. This is especially true on a platform like wordpress.com, where copyrighted materials are legitimately posted in the context of news articles, commentary, criticism, remixing, memes — thousands of times per day.
We’ve also seen how copyright enforcement, without adequate procedures and safeguards to protect free expression, skews the system in favor of large, well-funded players, and against those who need protection the most: individual website owners, bloggers, and small publishers who don’t have the resources or legal wherewithal to defend their legitimate speech.
Based on our experience, the changes to Article 13, while well-intentioned will almost certainly lead to a flood of unintended, but very real, censorship and chilling of legitimate, important, online speech.
Reddit has also put out a statement:
Article 13 would force internet platforms to install automatic upload filters to scan (and potentially censor) every single piece of content for potential copyright-infringing material. This law does not anticipate the difficult practical questions of how companies can know what is an infringement of copyright. As a result of this big flaw, the law’s most likely result would be the effective shutdown of user-generated content platforms in Europe, since unless companies know what is infringing, we would need to review and remove all sorts of potentially legitimate content if we believe the company may have liability.
Finally, a bunch of internet luminaries, including Tim Berners-Lee, Vint Cerf, Brewster Kahle, Katherine Maher, Bruce Schneier, Dave Farber, Pam Samuelson, Mitch Kapor, Tim O'Reilly, Guido von Rossum, Mitchell Baker, Jimmy Wales and many, many more have put out quite a statement on how bad this is:
In particular, far from only affecting large American Internet platforms (who can well afford the costs of compliance), the burden of Article 13 will fall most heavily on their competitors, including European startups and SMEs. The cost of putting in place the necessary automatic filtering technologies will be expensive and burdensome, and yet those technologies have still not developed to a point where their reliability can be guaranteed.Indeed, if Article 13 had been in place when Internet’s core protocols and applications were developed, it is unlikely that it would exist today as we know it.
The impact of Article 13 would also fall heavily on ordinary users of Internet platforms—not only those who upload music or video (frequently in reliance upon copyright limitations and exceptions, that Article 13 ignores), but even those who contribute photos, text, or computer code to open collaboration platforms such as Wikipedia and GitHub.
Scholars also doubt the legality of Article 13; for example, the Max Planck Institute for Innovation and Competition has written that “obliging certain platforms to apply technology that identifies and filters all the data of each of its users before the upload on the publicly available services is contrary to Article 15 of the InfoSoc Directive as well as the European Charter of Fundamental Rights.”
It doesn't have to be this way. There are campaign pages for those in Europe to contact their MEPs at SaveYourInternet.eu and ChangeCopyright.org. As it stands, the EU's Legal Affairs Committee will vote on this proposal next week. If it passes in tact, it's very likely that this will become official and all EU member countries will need to change their laws to enable this ridiculous and counterproductive plan.
There are, of course, all sorts of threats to the internet. In the past, SOPA/PIPA and ACTA would have changed fundamental concepts. Here in the US, we've just dumped net neutrality in the garbage. How the internet is shaped post-GDPR is still being figured out. But I can't think of a greater threat to the basic functioning of the internet than the current proposal in the EU right now. And, yet, it seems to not be getting nearly as much attention as those other things. Perhaps we're all fatigued from the other threats to the internet. But we need to wake up and speak out, because this one is worse. It will fundamentally change massive parts of how the internet works -- and almost all of it is designed to make it incredibly difficult to run an internet site that allows for any public participation at all.
If you're not in the EU, you can still speak up, and hopefully some Members of the European Parliament will pay attention. The world is watching what the EU Parliament does next week to the internet. If it goes along with the plan it will stamp out innovation and free speech, and basically hand over a huge gift to a small group of large media players who never liked the disruptive nature of the internet in the first place, and are now gleeful that EU regulators have more or less gone along with their plan to stamp out what makes the internet so wonderful. We've heard that some EU Parliament members are getting at least a little concerned because of the noise people are making about this, but it's time to make them very concerned. They are trying to fundamentally change the internet, and they don't seem to care about or understand what this actually means.