Earlier today, we had a post detailing the completely ridiculous "defense" of Articles 11 and 13 in the EU Copyright Directive that the EU Parliament's JURI Committee released. It was so full of misleading statements, outright lies, and contradictory arguments that it would have been hilarious, if it wasn't trying to justify changing the entire internet for the worse. However, those of us who think that the EU should drop Article 13 (and Article 11) entirely now have a very unlikely ally: the legacy entertainment industries, who were the ones lobbying heavily for Article 13 in the first place.
As we had noted last month, as the negotiations moved forward on Article 13, the TV, sports and film industries -- calling themselves the "creative sectors" -- have been suddenly freaking out and asking the negotiators to hit the brakes, or at least carve them out of Article 13. They were doing this for all the wrong reasons of course. Specifically, negotiators had begun to consider a very, very limited (and ridiculously weak) safe harbor for internet platforms, that if they followed a few key steps, they'd be able to avoid having massive liability foist upon them if they let any users sneak through an upload of infringing content (they'd still have to pull it down quickly after it was uploaded, but they wouldn't be facing billions in fines).
And, now with Article 13 just about finalized and it looking absolutely terrible in almost every single way... Hollywood is going for broke and now calling for negotiations on Article 13 to be suspended entirely. Again, they're doing this for totally the wrong reasons, but considering that absolutely no one wants Article 13 at this point, shouldn't EU negotiators just drop it?
We understand the eagerness to bring the negotiations to a close within the current mandate. However, rather than rushing the highly controversial Art. 13 and seeking conclusion of this provision, no matter the jeopardy to the European copyright framework and no matter the prejudice and damage to the creative sectors before the end of this legislative period, we urge EU co-legislators to suspend negotiations with respect to this article.
We agree. Negotiators should drop Article 13 entirely (Article 11 as well, but we'll discuss that another time).
This letter is signed by a bunch of legacy copyright interests, with the main one being the MPA (the MPAA's international arm). And their reasoning, as before, is that they actually think that they're going to get a better deal (i.e., no safe harbors for internet services at all) in the EU Courts:
One of the main justifications for Article 13 articulated in the Commission’s original impact assessment back in 2016 was the absence of a CJEU referral that could bring clarity to the question of whether an uploaded content service is responsible for acts of communication to the public and/or can benefit from the hosting provider status under the E-Commerce Directive. Since that assessment the situation has now fundamentally changed. In the meantime, such a referral has been launched by a recent decision of 13 September 2018. The German Federal Court of Justice (Bundesgerichtshof) referred a case to the CJEU involving YouTube/Google and certain rightholders, for clarification of this very issue (case C-682/18 Google e.a.).
Basically, Hollywood and its friends pushed for Article 13 when they thought that courts had read the law (correctly) to mean that the safe harbors already existing in the E-Commerce Directive applied to internet platforms hosting user generated uploads of content. However, at least one German court has mucked that up, and that case is being reviewed by the EU Court of Justice... and Hollywood is hoping that the CJEU will just declare that these safe harbors don't apply for platforms hosting content. Basically, Hollywood is going for broke. It truly wants to make the internet change massively, such that there is no more "user generated content" platforms unless those platforms first agree to throw money at Hollywood not to sue them. It's pretty close to an outright extortion scam.
Either way, we're happy that Hollywood has now properly recognized that EU negotiators have no business moving forward with Article 13, and we're happy to agree that it should be dropped.