Unleashed Code: November 2018

PLEASE READ BELOW REGARDING THE EU AND THEIR DUMB ASS PLANS

We should be very careful before making significant changes to fundamental concepts of how the internet works.Unfortunately, Articles 11 and 13 of the EU Copyright Directive take a wrecking ball to those core concepts, and do so with little thought or understanding of the 2nd and 3rd order effects these moves will have on innovation and the ability to communicate online. Ideally, during trilogue negotiations, the EU would choose to remove entirely both Article 11 and 13, as they are not fit for purpose. Barring that, however, we have a number of suggestions for ways to improve both proposals.

After many years and a variety of different proposals, the EU Council passed an EU Copyright Directive in May 2018, and the EU Parliament passed its version in September. The intent behind this proposal has been laudable: in an attempt to harmonize copyright law across the EU member states, it makes sense to create a larger framework that might open up a larger market and enable services to flourish with access to a much larger market, without having to adjust and adapt to each distinct set of local market rules.

Unfortunately, there are grave concerns over the impact of these laws on the way the internet works, on the incentives and market structure for innovation, and on how it will impact creativity and communication online.

OUR CONCERNS

Article 11 will stifle the flow of news and information.

The "link tax" won't help news publishers, but it will harm the internet.

Bad For Readers

A link tax will make it harder for readers to find and share news on their platform of choice, and will reduce the number of alternative perspectives and analyses to explore.

Bad For Publishers

Link taxes don't increase revenue, but they do reduce circulation — especially for small and independent publishers who rely most heavily on online platforms.

Bad For Online Services

The vague language around the link tax makes it impossible for websites to know if they are following the rules, likely forcing them to reduce or eliminate news sharing altogether.

Specific problems with Article 11 include:

A link tax has been tried before in both Germany and Spain and ended up being a disaster in both places, leading to no new payments to media organizations, less overall access to news for the public, and significant harm to smaller publishers.
Media publishers already have tools, such as robots.txt to stop aggregators from scraping their site. That they choose not to suggests that they see and appreciate the value they get from aggregators who send them traffic. Not only that, but nearly every site engages in search engine optimization, which involves quite a bit of money and resources focused on appearing even higher in aggregators such as Google News, demonstrating, again, the value news organizations see from aggregation sites.
The initial wording of Article 11 is extremely vague, such that there is reasonable fear that some will interpret it to mean that mere links that include just 1 or a few words from the story or headlines violates the rules.
Many media sites actually would prefer to share their works for free, and support open access systems and tools, including open licenses like Creative Commons -- some of which might not be allowed under interpretations of Article 11.
Under the existing vague terms, what sites qualify as a media site is already vague, which could cause confusion and additional problems as lots of sites clamor for payments from the licenses for news aggregation.

Article 13 will result in censorship and waste.

Intermediary liability and mandatory upload filters will cause chaos for user-generated content platforms.

Bad For Users

Users will have less choice, less access to content, and less opportunity to comment and interact online as liability and filtering limits online platform capabilities and innovation.

Bad For Creators

Intermediary liability encourages creative platform providers to greatly limit what users can do, while upload filters inevitably lead to false positives that block creators' work.

Bad For Online Platforms

User-generated content becomes a massive risk for online platforms when they are liable as intermediaries, making that kind of innovation all but impossible.

Specific problems with Article 13 include:

Putting liability on intermediaries has been shown, time and time again, to lead to significant censorship, as the incentives are to pull down lots of content, rather than face liability.
The vague terms in Article 13 will lead to over-censorship. Two decades of evidence (such as with the US's DMCA notice-and-takedown provisions, which are much less burdensome) already show this. Expanding such liability massively will similarly increase censorship online.
Many of the proposals in Article 13 create literally impossible standards, requiring a prevention of infringement on platforms that cannot be accomplished. This will result in constant litigation.
The vague language in the various proposals leaves it entirely unclear what will be enough to avoid liability, creating confusion, leading to wasteful spending on a variety of ineffective “solutions” and massive censorship.
The costs associated with this can and will only be borne by the largest companies, locking in the dominant platforms of today (nearly all American companies), leaving little room for innovation and competition.

SUGGESTED FIXES

We believe that neither Article 11 nor 13 serves any reasonable purpose. Not only will both create massive problems for the internet, they will similarly create massive problems for the content creators they claim to help. That said, if the EU insists on moving forward, it is critical that key fixes be made and the language be clarified.

Fixes For Article 11

Clarify in great detail what will require a license. There has been concern about whether a single word would qualify, or a link. The existing text does little to clarify this and leaves this open to widespread abuse. The European Parliament's amended text in Recital 33 helps to clarify this, but could go further.
Greatly limit what sites this applies to. The current “digital uses” is so broad as to include basically any use — even those beyond the internet. If the target is news aggregators, then make that explicit. The European Council's use of “online uses” rather than “digital uses” is an improvement, but could go further.
The license should only apply to the use of significant amounts of content, well beyond a single sentence or headline, and should only apply in cases where the content might act as a substitute.
Only require licenses for making content available, not for the simple act of copying or indexing.
Similarly it should be clarified that Article 11 does not apply to individual users, but only largest sites engaged in the aggregation of news.
Clarify what a “press publisher” is under the law. As it stands that is unclear, and thus could be interpreted to include all sorts of sites. In particular, it should exclude “news agencies” as the widespread use of news wires could mean a variety of different licenses are necessary for the same content (for example in the case of aggregating news from a newspaper that republishes an AP/Reuters piece — would a news aggregator require a license from both the newspaper directly and the wire service?)
Additionally, make it clear that a press publisher does not include scientific journals and similar non-news-based publications.
Reduce the term of this protection from 20 years to no more than one year. The concern raised by certain press publishers is almost entirely about competition on timely news. After a year, the news is no longer timely. Leaving a term of 20 years will almost certainly harm the ability to archive historical news coverage that is unlikely to last 20 years.
Make sure that press publishers are free to opt-out of any mandatory licensing, enabling them to set up whatever business model and licensing structure they prefer, including open access and Creative Commons-style licensing.
Create exceptions for smaller sites and those not focused exclusively on news or those who provide significant commentary around the news.
Create a clear exception for factual information, rather than creative information.

Fixes For Article 13

Maintain the hosting safe harbour, letting platforms know exactly what they can do to avoid liability.
Make it explicit that existing liability protections, such as those in the E-Commerce Directive remain in place even under Article 13.
Clearly define what is meant by “appropriate and proportionate” as it provides absolutely no guidance to service providers and is left wide open for litigation and abuse.
Clarify what alternatives there are to upload filters to avoid liability
Clarify which “service providers” Article 13 applies to in much more detail. This includes a clear definition of “public access to large amounts of works.” What is “large”?
Instead of merely having this cover service providers who provide access to “large amounts of works,” have it apply only to providers who provide “large amounts of infringing works.” There are multiple platforms that provide access to lots of works, with very little infringement, and they should not be overly burdened by rules designed to prevent abuse when they have little to no abuse.
Create clear exceptions for sites to protect innovation and free speech. Specifically, make it explicit that user rights concerning parody, fair dealing and similar rights are exempt from licensing requirements.
There should be clear and significant penalties for providing false reports of infringement.
Copyright holders should be required to provide any platforms with specific identifying information, ownership details and content information in order to identify infringing works.
Copyright holders should be required to help platforms identify specific cases of infringement to be addressed, rather than requiring service providers to police every corner of their services.
There need to be clear exceptions for sites that make a good faith effort to comply, but that inadvertently allow some infringement to slip through on their platforms.
Introduce a fair use-like exception in the EU that can legalize memes, remixes and other everyday online culture.
Since the purpose of Article 13 is focused on music and video sites, the rules should be specifically limited to those types of sites to avoid burdening platforms in other areas where the requirements of Article 13 do not make any sense at all.
There should be required transparency reports on how Article 13 is being used, including reports on abusive claims of infringement.