Tag: 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.

National Review Says ALI Oversteps in Areas Other Than Copyright

What is the difference between standing on legal principle and engaging in legal activism? The wry answer, of course, is that the attorney, scholar or judge who agrees with one’s opinion is a champion of legal principle while any of these who disagrees with one’s opinion is a feckless activist. “…there must be a clear line between describing what the law is and seeking to establish new law and policy,” writes John Fund for the National Review in an article about the “activist” character of the American Law Institute’s current agenda in issuing Restatements of Law. As described in this post, ALI traditionally publishes Restatements for the purpose of consolidating and unifying disparate common law opinions into general guidelines that may be cited almost as though they were statutory law.

I agree with Fund in spirit, even though I suspect that policy-for-policy, he and I would not agree as to what constitutes principle vs. activism. National Review is arch conservative and, as such, its editors probably would not find any hypocrisy in Fund’s citing the late Justice Scalia’s critique of recent ALI Restatements as “aspirations for what the law ought to be.” I would personally say the same thing about Scalia’s opinions in Heller and Citizens United, for example, but such is the subjective nature of the issue at hand. The law is always some version of what we want it to be.

Still, I am inclined to give Fund the benefit of the doubt that ALI Restatements are trending toward a more common definition of “activism” if their proposal to issue a Restatement on copyright law is any indication. As multiple copyright attorneys have stated, even considering a Restatement on a body of law that is already statutory is an undertaking that has never occurred in the hundred-year history of the institution. If that general fact emits a whiff of activist smoke, then the fire is in the detail that all the individuals pushing for the copyright Restatement are known to be ideologically critical of copyright.

I cannot comment on Fund’s report that ALI Restatements are also causing havoc in insurance, tort, and contract law, but he does state, “Last month, a group of six governors — from Texas, Maine, South Carolina, Nebraska, Utah, and Iowa — sent the ALI a letter warning that the proposed draft is a usurpation of the law-making authority of their state legislatures.” Again, I can imagine any number of laws in those states that I personally don’t like, but that doesn’t mean legislative authority should be undermined at the state level any more than it should be expropriated at the federal level. And as with the proposed Restatement on copyright, it would be interesting to know if this is the first time state governors have accused the ALI of overstepping its bounds in this way.

As a non-attorney, I am in no position to comment upon—or even know—the inner-workings of the American Law Institute. Whether Fund’s conspiratorial tone is justified, casting ALI as a near-clandestine organization undermining legal foundations, is hard to say. His short article does not lack conservative rhetoric, even citing the dreaded “political correctness” as motivation behind ALI’s Restatements. Especially in the current political climate, this is a very tough needle to thread. There are plenty of folks who would describe legalized same-sex marriage as judicial “activism,” while I would consider that view euphemistic bigotry. Regardless, the ALI is not a legislature; and to the extent its Restatement process may be seen as supplanting the legislative process, this is certainly grounds for scrutiny from any political perspective.

TorrentFreak Still Selling Piracy as Ideology

I guess it’s pick on Andy at TorrentFreak week.  (Sorry, Andy. ) But a recent blog of his titled No Level of Copyright Enforcement Will Ever Be Enough For Big Media begs a response.

Citing TF’s decade of experience covering the piracy battles, Andy repeats a familiar narrative that because piracy will never stop, and because pirates will continue to innovate, the major rights holders will never stop wanting more “draconian” copyright laws—laws that will threaten internet freedom but will not mitigate piracy.  He says that history teaches us these laws will fail in their purpose but will continue to fuel “justifiable” outrage among users, making enemies of prospective consumers for creative works.  “No one wants a minefield of copyright law. No one wants a restricted Internet. No one wants extended liability for innovators, service providers, or the public. But this is what we’ll get if this problem isn’t solved soon. Something drastic needs to happen, but who will be brave enough to admit it, let alone do something about it?” he writes.

But brave enough to do what about what exactly?  Andy describes a landscape in which pirate technology is becoming more sophisticated and more accessible—even while he credits piracy with fostering affordable, legal services like Netflix, Spotify, Hulu, etc.  Aside from being historically inaccurate—because these streaming platforms were not a response to piracy—Andy doesn’t seem to notice that there is no solution to the problem he describes.  Because the crux of what he’s saying leads one to the conclusion that no matter how affordable and accessible a vast library of works becomes, people will still pirate—a lot.  So, the real title of his post should be No Amount of Free Content Will Ever Be Enough For Some Consumers.

The major flaw with the post is that it’s predicated on a longstanding bit of revisionist history written by the “file-sharing community,” which continues to repeat the campfire legend that piracy was a market response to the excesses and greed of Big Media.  But although the 1990s did reveal plenty that was wrong with major media corporations, I’m calling bullshit on the post hoc assertion that this was a significant factor in the adoption of Napster beginning in 1999.  People used Napster because it was cool and free, not because there was a collective sense of rebellion against corporate producers of music and movies.

I’m from the 80s. We bought a lot of music on vinyl and CD, and I don’t remember any of my peers feeling particularly ripped off by the industry—at least not any more than young people feel ripped off by everything.  But if Napster had been introduced while we were in college, I have every confidence we would have been all over it. A technology that turns a personal computer into a free jukebox?  Hell yes a bunch of teens and young adults are going to think it’s the coolest thing ever invented. And it will only be after some ethical doubt about stealing music creeps into someone’s consciousness that the rationalizations will follow—including the self-affirming lie that we’re only stealing from greedy corporations and not the artists. Right after a new band called the Red Hot Chili Peppers played our dining hall, we’d have been “Napstering” their songs and devising elaborately lame explanations for why “sharing” their music was better than buying it.

The false narrative that piracy represented a socially conscious response to corporatism morphed into the mantra per ad nauseaum that any measure proposed to mitigate piracy will always be the antithesis of “internet freedom.”  The underlying hypocrisy of this point of view is that it willfully ignores the fact that far from being an anti-corporatist “movement,” piracy merely enriched two different categories of corporatists—one, a group of outright thieves; the other, stakeholders in giant internet platforms.  As musician/activist David Lowery wrote in 2012, the new boss (Google, Spotify, etc.) is worse than the old boss (traditional labels, studios, etc.); and if Andy and the “file-sharing community” want to take credit for something, they can take credit for that.

Ultimately, though, Andy fails to recognize that as long as any rule of law—from copyright enforcement to a right-to-be-forgotten to an anti-trafficking provision—is described as anathema to “internet freedom,” there is no conversation to be had.  At least not with anyone who thinks as he does.  Because the logic he presents is that these harms are the price we pay for “freedom,” which is some ultra-libertarian, techno-centric nonsense long overdue for tossing into the Failed Ideas bin.  2017 demonstrated for many (though probably not enough) that the wildwestness of the internet isn’t exactly healthy for democracy—that just like democracy in physical space, freedom is actually sustained by certain boundaries.

Meanwhile, on a purely practical note—one I’ve alluded to the past—who are all these leisure-class consumers with so much time on their hands that they need to pirate content?  Just for filmed-entertainment, I can think of at least a half-dozen new titles that I haven’t had time to watch yet on Netflix, Amazon Prime, and Hulu; and by the time I get to those, there will be more material released.  The market is growing very rapidly, with the new streaming platforms developing some of the best new work ever made. But we can assume that piracy is also a greater threat to the streaming-only platforms than it is to traditional producers with other avenues of distribution.  Note that Netflix and Amazon top the list of plaintiffs in a lawsuit filed January 10th against the makers of Dragon Box—the latest in sophisticated piracy devices to enter the market.

More about Dragon Box in a future post; but for now, I can’t help but think that editorials like this one from Andy are sounding a little out of touch—a bit “clinging to old models” if you will. Piracy itself may not be on the wane, but the rationales used to justify it sound weaker than ever in context to the changing media market and in context to some of the hard realities of what many call “internet freedom.”  So, to the extent Andy’s post is a call to action, whatever action he imagines cannot proceed based on a history that never really happened.  It’s time to put away the childish thing that says piracy = freedom.

Photo by cienpies.