Category: Copyright

EU Copyright Proposal Article 13 Set to Destroy the Internet (Again)

As mentioned in my previous post, Article 13 of the EU Directive on Copyright in the Digital Single Market is the latest proposal that will “destroy the internet as we know it,” if the statute is ratified in its present form. The #copyright feed on Twitter seems dominated by messages proclaiming the existential toxicity of Article 13, and, as usual, there are a lot of articles agreeing with one another that this proposal is really bad—all of them long on synonyms for bad, but short on substance as to why bad things will actually come to pass. And the reason for this is that Article 13 does not outline any specific practices but rather proposes to adopt certain practices. If that sounds like a distinction without a difference, it isn’t.

The broad goal of the EU Directive is to create a Digital Single Market (DSM), something that consumers, digital rights activists, and even many rightholders have been advocating for years. Harmonizing the disparate copyright laws (as they relate to internet distribution) of the 28 member countries should facilitate better access for users and, in principle, foster more robust trade in digital goods throughout the continent.

But the European Commission simultaneously recognizes various threats posed by the internet industry to the authors of works—especially from major platforms that host vast amounts of user-uploaded, copyrighted material.  In the European Commission, these are called Online Content Sharing Service Providers (OCSSP), a category that excludes non-commercial sites like encyclopedias or sites where “content is uploaded with the authorisation of all concerned rigthholders, such as education or scientific repositories.”

Presently, the Directive’s Article 13 mandates that Member States work with major service providers, user representatives, and rightholders to develop technical measures designed to filter content in order to prevent or mitigate the uploading of infringing material. Here’s the language from the current draft:

“Member States shall facilitate, where appropriate, the cooperation between the online content sharing service providers, users, and rightholders through stakeholder dialogues to define best practices for the implementation of the measures referred to in paragraph 1 in a manner that is proportionate and efficient, taking into account, among others, the nature of the services, the availability of technologies and their effectiveness in light of technological developments.”

This is what will supposedly destroy the internet as we know it.  A provision that Member States work with stakeholders to develop technical measures to filter unlicensed content from various platforms.  A process that, if it happens at all, will take several years of negotiating (and bickering) to implement.  I feel compelled to interject that when the DMCA was passed in the U.S. in 1998, it also contained a mandate that rightholders and service providers collaborate to develop technical measures in order to filter for infringing content. In fact, the service providers testified to the availability of such technical measures as part of their rationale for lobbying for the safe harbors in DMCA in the first place.

If America’s past is Europe’s prologue, the major service providers—with ample help from anti-copyright ideologues—will fight the implementation of such measures at every phase, so we’re at least 10-15 years from “destroying the internet we know.”  I find this funny because the “internet we know” (using YouTube as a reference) isn’t 15 years old yet, and I’m not sure why the internet of 2031 should be required to resemble the internet of today in any context whatsoever.

Although the EU Directive is not specific about what technical measures should be developed and implemented, the usual chorus of critics hear the death knell of the internet in the mere suggestion that such technical measures should even be considered. Thus, the main message they’re selling—the one they always sell—is that no technical measure could ever be implemented without fostering censorship of protected speech. Hence, Pirate Party Member of the European Commission Julia Reda’s labeling these provisions “censorship machines.” Then, the anti-copyright voices in academia and “digital rights” groups jump on board with scary-sounding declarations like this one:

Algorithms Can’t Assess Fair Use!

It’s true. They can’t.  And the day they can, I’m going into the bunker because this would indicate the machines have woken up and are about to kill us. Of course, most human users who upload copyrighted works aren’t very good at assessing fair use either—or more to the point, most human users don’t bother thinking about what they’re uploading, period. It is simply assumed at this point that every user is free to upload whatever he wants without considering whether he has any right to make a work available online.

Just because digital activists and copyright haters paint a picture of an internet replete  with fair uses, that doesn’t make it true.  In fact, in my anecdotal experience with friends—including artists who don’t want to infringe—almost nobody has taken the time to understand fair use. So, are social media platforms more richly populated by fair uses or infringing uses? I don’t know. But neither do any of the people currently overstating assumptions about fair use in order to scare users about the provisions in Article 13.

Moreover, as alluded to in my last post, if content filtering systems are too hypersensitive, this will adversely disrupt the use of licensed works. For instance, I pay for the stock photos I use on this blog, but if WordPress deploys a filter that is too robust and rejects every image, that’s bad for me and the rightholders of those images. This is a tiny example as to why Article 13 requires stakeholders to develop technical measures through collaboration.

And on that point, why don’t the digital activists ever seem to want to collaborate on such initiatives rather than invoke Revelations at the mere prospect of having the conversation? Because a) they fundamentally hate copyright and have no intention of finding compromise; or b) because they really are in Silicon Valley’s pocket and seek policies that serve the interests of Google et al.

It is important to keep in mind that almost no proposal—from voluntary to statutory—is ever endorsed by these parties if it implies even a hint of platform responsibility for user-uploaded content. This remains true despite the staggering evidence that our 20-year policy of leaving platforms to their own “merits” resulted in the Facebook/Russia/Cambridge-Analytica scandal. These events have led many citizens to reconsider the need to preserve “the internet as we know it” in favor of adapting to an internet that better serves society. To achieve this, we will have to accept that, in fact, there are laws applicable in physical space which are not rendered obsolete by interacting in cyberspace. Maybe if we describe this approach as disrupting the internet, the digital activists will get it.

Don’t Mourn for the Memes Just Yet

Over the weekend, a photograph taken by Jesco Denzel went mega-viral. Ultra-viral? Really really viral? Whatever. It killed. You must have seen it. It depicts leaders of the G7 nations, headed by German Chancellor Angela Merkel, in a composition that seems to suggest the adults of the world are schooling a petulant-looking Donald Trump. But I don’t mention the photograph to comment on the President or about his administration’s posture regarding international trade. I mention it because by now, the image has been “memed” dozens or hundreds of times; and although any number of these derivative images may be amusing, I have to question the extent to which they are particularly important.

Consider what I assume to be a favorite version among Trump critics: the one that shows the President seated in a high chair with a bowl of spaghetti overturned on his head. It’s funny. But what it actually says is also redundant to the way I think many people read the original Denzel photograph in the first place. What has the meme really added? A fleeting moment of comic relief soon to be forgotten amid the millions more to come? Or is it truly a substantive work of political satire that will have lasting, salient effect?

In context to this post, the meme version is not necessarily a fair use as a parody, if it were ever to be the subject of a copyright infringement claim. Without doing a whole fair use analysis, the fact that the spaghetti version merely emphasizes what the original says (at least to Trump’s critics) weighs against a finding of fair use in which the meme-maker parodied the work rather than merely used Denzel’s photograph to lampoon the President. But within that analysis lies a hint about the social and cultural value of memes in general.

Because the meme in this example adds almost nothing while potentially diluting the value of the original—both for the author and the viewer—we should not completely ignore what we lose in the digital age, when an important image is no longer allowed to simply be what it is for even a few hours before every prankster with Photoshop has to draw metaphorical mustaches on it. Though funny, the spaghetti variation of Denzel’s photograph is glib in contrast to the provocative quality of the original, which my friend, the photographer Doug Menuez, predicts may prove to be one of the truly important photographs in history.*

If it seems that I exaggerate the worthlessness of memes it is only to propose some counterbalance to the more general attitude that the social media meme is a medium of great value. And the reason I stress a more balanced view is that several stories have surfaced recently declaring that if the current EU plan to harmonize copyright law for the digital age passes as written, memes will be banned from the internet. So, aside from the fact that, of course, memes will not be banned, I’m not convinced society would lose anything if memes were either fewer in number or less-infringing in nature.

Specifically, this “save the meme” campaign is one of several lines of attack on the proposals in Article 13 of the European Commission’s strategy to create a Digital Single Market. This section outlines a mandate for platforms that host user-generated content to implement technological filters that identify and help remove infringing material from their platforms. Pirate Party Member of the European Parliament Julia Reda has labeled these technical measures “censorship machines” (of course she has), and this rhetoric has been echoed by the usual suspects EFF, Techdirt, et al as the latest major threat to the “internet as we know it.”

On that subject, I’d like to remind readers that the “Russian hacking” of American democracy via Facebook ads was a campaign based largely on memes. If you watched the hearings on Capitol Hill, memes are what Members of Congress presented to Zuckerberg as evidence of Russian-sponsored messages designed to foment and aggravate divisiveness among American citizens. So, not only would I caution against too ardently “saving the meme,” it seems increasingly clear that the more generalized agenda to save “the internet as we know it” cannot be taken too literally.

In a subsequent post, I’ll try to dig into Article 13 in more detail, but the general complaint being marketed as inevitable meme extinction assumes that any technical measure employed to filter the uploading of unlicensed content will not be able to detect fair uses. Consequently speech—potentially speech of great parodic significance—will be removed from the internet.

It’s a ballsy complaint coming from the same crowd that insists rightsholders must “consider fair use” before sending a DMCA takedown because they seem to think the user of a work should not have to “consider fair use” before uploading. I say this because these same critics assume, or at least promote the idea, that most meme uses of protected images are fair uses. In all likelihood, however, this is not the case. Most memes I see would not stand up to fair use analysis, so what the critics are really saying is that memes are just too important to lose, even if they’re infringing.

So, I would first reiterate that a very large volume of memes are less culturally valuable to society than they are financially valuable to the platforms. Second, these critics overstate the assumption that everyone who alters a photo to make a meme is engaged in a fair use—be it funny, poignant, cruel, or just Russian agents having fun. Third, and perhaps most importantly, if the so-called “censorship machines” were as hyperactive as the critics claim, these measures would invariably harm the interests of rights holders, advertisers, and any other party who benefits from licensed use of works on social platforms.

This suggests that perhaps nobody envisions “censorship machines.” In fact, if experience tells us anything in this regard, it’s that the anti-copyright, pro-Google “activists” start saying “censorship” and “break the internet” at the mere suggestion that any proposal should change the status quo. Hence the specifics are either still in development or are being purposely obfuscated by the critics.

As I say, I’ll do my best to get into the specifics related to Article 13, but in the meantime, I’ll summarize what I said to Washington Post tech reporter Caitlin Dewey when she predicted the death of memes in 2012: infringing protected works is not actually necessary to produce memes; authors of works produce all the time without infringing; it’s called being creative.

*I do not claim to know how Mr. Denzel feels about any of the memes of his photograph.

Is the ACCESS Bill Mean-Spirited or Ill-Advised?

Last week, Senator Ron Wyden (D-OR) suddenly—and I do mean suddenly—introduced a bill in the Senate that many of the usual copyright-haters are applauding as an “alternative” to the CLASSICS Act.  It’s hard to decide whether Wyden and whatever narrow constituency he’s serving are using this bill as a political stunt aimed at killing CLASSICS, or if they’re really arrogant enough to believe this bill would not become the legal briar patch the authors of CLASSICS worked hard to avoid for the time being.  In fact, just dropping this bill in the Senate’s lap at the eleventh hour has the potential to upset the entire, multi-stakeholder-negotiated Music Modernization Act omnibus package—the one in which digital platforms like Spotify have a stake—and which passed the full House with a vote of 415-0.

Despite all that, Wyden unilaterally chose to disregard the many years invested by his colleagues in the House Judiciary Committee, the volumes of testimony and negotiations, and the 2011 recommendations of the Copyright Office, to introduce a counter-proposal called the ACCESS to Recordings Act.  The acronym stands for the Accessibility for Curators, Creators, Educators, Scholars, and Society.  Seriously?  I know legislation can get a bit agitprop in its nomenclature, but ACCESS?  The curators, creators, educators, scholars, and society have access!  We’re awash in access!  What we need is fairness in the commercial markets for the artists whose works we access all the time.

Anyway, the bills …

The function of the CLASSICS Act is fairly simple, and for good reason—because the current copyright status of these pre-1972 sound recordings, protected under myriad state laws, is complicated.  For instance in one state, the owner of a physical master recording may be considered the rights holder of the underlying work but not so in another state.  The list of potential variables is long, but suffice to say CLASSICS doesn’t address any of this common law complexity because, as noted in an earlier post, it would be an undertaking lasting many years, possibly achieving nothing.  By contrast, ratification of CLASSICS, as part of the MMA, means these legacy artists get paid immediately, and the relevant digital streaming services achieve legal certainty in a historically gray area that has incubated numerous lawsuits.

CLASSICS leaves the common law protections for these sound recordings in place, along with the existing copyright expiration date for all of these works of February 15, 2067.  The only thing CLASSICS does is to create a new federal protection exclusively for non-interactive (e.g. SiriusXM or Pandora) digital transmissions where these recordings are played all the time but without compensating the artists.  As Robert Levine, reporting for Billboard, writes, “…a few big companies will pay artists and labels a bit more money. That’s it.”

ACCESS is Sham Full Federalization

It is important to keep in mind that the detractors currently attacking CLASSICS cannot point to single constituency whose interests are in any way diminished from the status quo.  Yet,  rather than endorse a simple solution to compensate these relatively contemporary artists through one narrow licensing regime, the anti-copyright forces, including library organizations, have chosen to crash the legislative process with this bill.  ACCESS is a ham-handed version of what these parties really want—full-federalization of pre-72 recordings—but both the timing and substance of the proposal blithely glosses over the complexity of this more ambitious agenda.

For instance, ACCESS presumes to erase all common law copyrights and migrate these sound recordings into their own niche of federal protection with the stroke of a pen.  But as Levine observes in that same Billboard article, this could be interpreted as an unconstitutional “taking,” an obstacle which alone suggests the bill is not designed to pass so much as it is to stymie the MMA until it perhaps expires with the mid-terms.  Additionally, this over-simple proposal to federalize this collection of sound recordings could trigger a festival of litigation among artists and labels over issues pertaining to who owns what, all in reaction to such a radical and ill-conceived change in legal status.

The ACCESS bill proposes different expiration terms than CLASSICS for these works, namely a flat 95 years from publication date, even though the meaning of “publication” under the presiding 1909 Act is a bit of a challenge in itself.  While this proposal would mean more of these works falling into the public domain sooner, this would largely be a symbolic “victory” for the copyright haters providing little value to the general public and varying degrees of unfair treatment to the artists.  (And that’s if the act didn’t cause any other chaos.)

For instance, Don McClean’s “American Pie” would expire one year earlier under ACCESS than under CLASSICS; Smokey Robinson’s “Shop Around” would expire thirteen years earlier; and Artie Shaw’s “Stardust” would expire thirty-one years earlier.  And while all that may make some anti-copyright folks feel good about themselves, it is demonstrably irrelevant to us consumers because we already enjoy anytime-anywhere access to these popular recordings, and copyright term expiration cannot improve on 24/7 availability.  At the same time, it’s worth noting that for many of these recordings which are not commercialized, all the major labels have granted free licenses to the Library of Congress’s National Jukebox to provide free, public access to these works.

Finally, the ACCESS bill contains what can I best describe as a three-year grace period during which a major, corporate user may get away with all the infringement possible of these sound recordings.  The logic is labyrinthine, but it says that a rights holder must notify an alleged infringer no later than six months prior to taking action in a claim; and this limitation lasts for three years after passage of the act.  This provision can only be explained as a favor to the commercial digital broadcasters because, of course, they need Congress to protect them from the musicians.

What About Libraries?

The libraries have applauded the ACCESS bill, though it’s hard to fathom exactly why, other an appetite for futile defeat and antagonism.  While it cannot be denied that full federalization of these sound recordings would benefit libraries and archives, ACCESS will almost surely not achieve this goal.  Consequently, these organizations are either being naïve or callous in their support for Wyden’s tossing a legislative grenade at this late stage of the process.

The specific needs of libraries are entirely separate from the purpose of CLASSICS.  Yet, rather than engage in the normal legislative work needed to obtain the statutory exceptions libraries would like to see, they choose to back a dead horse and, once again, needlessly position themselves in opposition to a group of artists.  Then, as if to exacerbate the decision, they make inaccurate public statements that stretch way beyond their sphere of interest.  For instance, the Library Copyright Alliance published a letter signed by its member library associations, which states:

“While the ACCESS to Recordings Act provides more protections to artists than CLASSICS, it also provides more protections to libraries, archives, and museums.  The federal copyright standard provided by the ACCESS to Recordings Act includes important exceptions that permit digital preservation of pre-1972 sound recordings. These uniform exceptions would enable cultural heritage institutions to engage in critical preservation activities without concern about violating a multiplicity of different state law regimes.”

That first part of about providing “more protections” to artists is not exactly true from the artists’ perspective.  The libraries make this claim because ACCESS would transport all  the exclusive rights—reproduction, performance, derivative works—into federal protection, but the nation’s librarians are in no way qualified to say whether this is better or worse than the state laws currently protecting some of these works, thus implicating the aforementioned “takings” problem in the proposed bill.

As for the libraries, it is true that the common law status of many pre-72 sound recordings can be an obstacle to certain preservation activities, but none of that will be solved by endorsing a makeshift proposal that is almost certainly destined to fail.  Meanwhile, the CLASSICS Act explicitly extends library-focused exceptions that would enable these institutions to make recordings available that are otherwise not found in the commercial market.  (Isn’t that what the public really needs a library or archive to do anyway?)  But rather than win this small provision in CLASSICS today and collaborate on the more complex issues tomorrow, the library groups are going to endorse a fatally flawed bill and persist in their adversarial relationship with artists and authors for no imaginable reason.

What’s Really Behind This?

The ACCESS proposal cannot help but implicate the Gordian issues that legal experts, artists, and legislators sought to at least postpone with the narrowly-tailored CLASSICS Act.  It seems reasonable, therefore, to assume that Senator Wyden and his bill’s supporters know this to be the case and that the introduction of ACCESS is designed solely to run out the clock on the Music Modernization Act. Not only would this trash years of work by a lot of people, but there is not a single provision in the omnibus package which would negatively affect the parties suddenly endorsing ACCESS.  Hence, one can only conclude that this belated proposal is either mean-spirited or ill-advised.  Though it is arguably a bit of both.