Tag: EU copyright directive

Milton Never Said a Damn Thing About the Internet

I’ve been traveling and am, therefore, late to mention that the hotly-contested EU Copyright Directive passed last week. Not surprisingly, the usual critics have spared little hyperbole referring to the new legislation as the “end of the open internet” and a “disastrous decision.” Meanwhile, many of the copyright proponents I know view the directive as having had the teeth negotiated out of it while Chris Castle has opined that, for instance, YouTube will actually comply with the Directive shortly before Hell freezes over … 

One goal of the Directive was to have very large platforms, like YouTube, pay license fees to the copyright owners whose works contribute substantially to their revenue models. Thus, Article 13 (now 17) requires these large sites to develop technical measures to prevent and mitigate infringing uses, and this has been interpreted by many to mean that these platforms will implement filtering algorithms to identify protected works at the moment when a user initially uploads a file.*

For copyright owners, the proposal represents an important reversal of the current paradigm in which their works are chronically used without license, and they try to respond to every infringing use, one-by-one (a.k.a. the whack-a-mole problem), which is virtually impossible for a small, independent rightsholder. For the critics of the Directive, the assumed filtering at the point of user upload has been characterized as censorship because this would inevitably stifle all manner of legal uses before they are even published. One way or another, it should to be obvious why the status quo has been beneficial to YouTube and why the company used its platform to promote the censorship narrative against the legislation. 

In that regard I tend to agree with friends and colleagues who view passage of the Copyright Directive as at least a symbolic win for the democratic process itself. Certainly it is a refreshing change that the European Parliament was not bullied by Silicon Valley and was able to cut through a lot of the standard fear-mongering noise that was so effective against the SOPA/PIPA bills in the United States in 2012. Perhaps screaming #SaveYourInternet! is an exaggeration that has finally reached its limit.

But because I think the manner in which policy is debated is actually rather important, that brings us to the title of this post and the fact that it is apparently necessary to clarify that the 17th-century, English poet John Milton never said or wrote a bloody word about the internet. That may seem obvious to most, but not so much to history professor and novelist Ada Palmer, writing for the venerable Boing Boing.  In her post of March 24, she alleged that Article 13 of the EU Directive is comparable to European censorship of books in its ancient past.  She begins …

The EU Copyright Directive rekindles the oldest fight in the history of free speech debates, first waged by John Milton in 1644.  Then, like now, policy-makers were considering a radical change in censorship law, a switch from censoring material after it was published to requiring a censor’s permission to publish in the first place.

Nobody with the words professor and history next to her name should be allowed to write anything that misleading without rebuttal. And not wanting to bury the lede here, the most rudimentary response to articles like Palmer’s is that we cannot responsibly compare any proposal to require licensing of works by a for-profit corporation to a state’s authority to allow or disallow publication of works in the first place. There is simply no ideological or practical relationship between those two paradigms, let alone any relationship that spans from Milton’s role in the early phases of the English Civil War of the 1640s to the need to address various effects of internet companies in the present.

I’ll spare readers an attempt at historic summary, but England’s narrative vis-a-vis publishing, censorship, religion, and politics was—especially from the time Henry VIII broke with Rome—a schematic drawn by a psychopath. To give you some idea of what I mean, the fundamental language of the printing laws, beginning no later than 1557, hardly changed from iteration to iteration while the religious, social, and political postures of the state vacillated wildly for nearly 200 years.  

Hence, the 1643 proposal to end “great late abuses and frequent disorders in printing many false, forged, scandalous, seditious, libelous, and unlicensed papers, pamphlets, and books to the great defamation of religion and government” was not new language, but it had very different implications in Cromwell’s Parliament than it did under each of the precedent reigns of Mary I, Elizabeth I, James I, and Charles I before he was beheaded in 1649. 

So, Palmer is simply incorrect to call Parliament’s Printing Act proposal of 1643 a “radical change in censorship law.” To the contrary, it was a continuation of the same censorship laws being adopted under new management; and this was central to Milton’s complaint when he published his treatise Aeropagitica in 1644.  As both a literal and literary soldier for the cause of the Commonwealth, Milton saw the renewal of state publishing licenses as a needless reiteration of the royal prerogative to censor books (i.e. anathema to the anti-royalist cause itself). Notably, it was John Locke, father of the labor theory grounding one pillar of intellectual property, who inveighed against yet another renewal of almost the same law in 1694.

While it is true that Milton’s Aeropagitica is widely recognized as one of the most beautifully articulated defenses of free speech in our political heritage, it must remain in a context that is a very great distance from our modern conception of speech. For instance, Milton advocated allowing heterodox books et al to be published so that virtuous men would recognize the difference between good and evil; and while this is solid Puritan reasoning, it is not the underpinning of speech rights today—to say nothing of how far removed, say, “Paradise Lost” is from the average YouTube video.

Palmer makes a mistake common among academic critics when she draws straight lines between ancient Europe (usually England) and modern copyright. In fact, these lines are not only serpentine but highly fragmented. It would take a very long post to unpack all the moving parts, but just as Milton’s Aeropagitica should be seen as one ingredient in a philosophical soup that is many years away from tasting like the Bill of Rights, that’s more or less how we must view the practices of the English book publishers (the Stationers Company) and their relationship to the volatile English state between roughly 1557 and 1774.  

Simply put, only the state had the authority to grant (or not) permission to publish a work, while the Stationers’ monopoly on publishing was akin to the monopoly every other London guild—there were more than a hundred—enjoyed over its trade.  While there was intermittent correspondence between the publishing monopoly and state censorship, that narrative is a crazy quilt of inconsistency and has almost nothing to do with modern copyright law, which vests ownership in the expressions of individuals.

Yet, by invoking Milton, and even sprinkling the word Inquisition throughout her article, Palmer would have readers believe there is a through-line in the narrative—a kinship between copyright enforcement among private entities in the 21st century and government censorship of publishing in the 17th. There is not. And frankly, I am not sure which is a greater threat to rational public discourse—the hashtag that distills a complex issue into a lame bullet point, or the erudite article that sounds reasonable but is fatally inaccurate.  For sure, the democratization of the internet has given both more room to roam than either deserves, which does beg the question as to what this fight is really about.

* This is not mandated by the new statute and may in fact be how the platforms respond, but that’s a topic for a different post.

Internet Activists Clinging to Old Models in EU Copyright Fight

Last week was a rare, silent moment on this blog because I was in the middle of a rather arduous house move.  Consequently, I may be more than unusually prickly on the subject of holding onto old things, but it seems the last several days yielded a lot of internet activism aimed against the EU Copyright Directives, all of which seems to imply an unfathomable vote for the status quo.

Tomorrow (9/12), the European Parliament will vote on proposed copyright reforms as part of its Digital Single Market initiative. As happens with all proposals to improve the efficacy of copyright online, the familiar cadre of digital activists unleashed their weary-looking rhetorical hounds to frighten people into believing that the internet as we know it teeters at the edge of yet another existential cliff. That this strategy was effective five or six years ago was not terribly surprising, but the fact that there is no deviation from the digital activist’s hyperbolic narrative today is curious in light of the fact that more than a few of us in democratic nations have clued into a hard reality: the internet as we know it SUCKS.

I know. I’ve said it over and over. But seriously. The internet has hardly done democratic principles any favors. So why is anyone hell-bent on preserving the internet as-is for the sake of democratic principles? Or have I overlooked some nuance woven into the crazy-quilt of dysfunctional populism lately savaging common sense and decency throughout the Western world? As Stefan Herwig states in a recent guest post on The Trichordist …

“We urgently need a new Internet narrative that recognizes that access to information is only apparently free and socially useful while algorithms pre-sort our information horizon, equating popularity with relevance. The master algorithm popularity = relevance is deeply inscribed in the infrastructural DNA of the internet, steadily reprogramming our society. With the infiltration of such information services, that are targeted towards steadily confirming our opinions, serving our interests and networking us predominantly with like-minded people, we constantly lessen our societal abilities to differentiate and hold constructive discourses and heat up the growing disenchantment with politics and media.”

Thankfully, serious people are now willing to have a conversation about (rather than fawn over) the major internet platforms and their role in fostering so much political toxicity. Evan Osnos has published a new article for The New Yorker called “Ghost In The Machine: Can Mark Zuckerberg Fix Facebook Before It Breaks Democracy?” In it, he writes, “In Sri Lanka, after a Buddhist mob attacked Muslims this spring over a false rumor, a Presidential adviser told the Times, ‘The germs are ours, but Facebook is the wind.’”

That seems like an appropriate, tone-setting metaphor for a badly-needed fresh conversation about the responsibilities of internet platforms, who have long enjoyed a presumption of “neutrality” bolstered by legal frameworks that absolve ISPs of liability. Because, of course, these platforms are not the unmanageable wind; they are corporations directed by people to make profitable decisions.

As alluded to in this older post, if we’re ever going to find the right balance for internet governance overall, then copyright enforcement is a damn good place to start—particularly because mass copyright infringement was so intrinsic to the development of the “web as we know it.” Y’know, the one that sucks.

The irony, of course, is that with regard to the copyright proposals, the activists declaring that the internet needs saving (again) are not telling the truth about the actual proposals. And, well, there’s really no point in any of us fretting over predicted “censorship” if we’re going to believe opinion-makers who disseminate exaggerations and lies. The implication that, for instance, Article 13 of the EU proposal will end memes and remixes and ensure that no startup will enter the digital market should register as truly absurd as they sound. I mean without even looking into the details—because nobody does that anymore—do those claims even ring true to anyone willing to take a brief skeptical pause?

What’s being proposed in the EU is that the platforms, particularly major platforms, that host user-uploaded content might have to—get this—pay license fees to producers of that content and, further, that they might have to enable the content producers to have more control over how their works are exploited. Control over the use of works and financial compensation are two rather basic functions of copyright—principles that most people actually still support. And whether the EU gets these measures exactly right or not—because we are still years away from actual implementation of said proposals—there is something fundamentally wrong with people who seek to hijack the dialogue by screaming CENSORSHIP at the mere suggestion that perhaps the status quo isn’t working for everyone. Because it isn’t.

Finally, I have to agree with author John Degen, who posted his thoughts today on Medium after attempting dialogue with one notable critic on Twitter. “What struck me about the response yesterday was not the volume or the vehemence,” writes Degen, “It was the abject negativity and pessimism that was being expressed about the future of the internet and the possibility of innovation away from the state of things as they are.”

What that reminds me of is the “debate” over climate change. Whenever the answer came back that we can never mitigate carbon output without destroying the economy, I always considered this to be a needlessly fatalistic response. I mean all of human progress hinges on the attitude that we can’t do that thing…yet.

So, I agree with Degen that we can and should imagine an internet marketplace that treats artists and creators of works fairly, if for no other reason than everyone else in the world is now too dependent upon the network to simply leave it to ISPs to look out for our interests as they see fit. The EU Copyright Directive is a baby step toward platform responsibility; and those who oppose it so vehemently at this stage of the process clearly cannot fathom the internet ever changing into anything other than what it is right now. They are clinging to old models.

UPDATE:  The proposals passed this morning with a vote of 438 to 226 and 39 abstentions.  Hardly the end of the story.  Stay tuned.