Once again European lawmakers are set to vote on a bill that promises to change the internet as we know it. Experts say a misguided update to copyright laws poses a serious danger to how we share news, upload fair use content, make memes, and build startups. Now, some of the pioneers of the web are asking the EU to come to its senses.
Europe is far more progressive with its privacy protections than most of the world, but it tends to be heavy-handed with its copyright laws. Next week, the European Parliament will vote on the first major update to its copyright rules since 2001. The internet has exploded in breadth and popularity since then, and lawmakers are facing increasing pressure from lobbying groups to modernise copyright laws. Unfortunately, the solution they have come up with appears to be deeply flawed.
The most controversial aspect of the Directive for Copyright in the Digital Single Market Directive is Article 13, which imposes greater legal liability on websites and internet services for the content they host. Sites that allow users to post text, sounds, code, still or moving images will be required to automatically filter for registered content and will face penalties if they fail to block infringing content from appearing on their platform.
On Tuesday, more than 70 of the most notable names in the field of technology signed a letter addressed to the President of the European Parliament urging him to oppose Article 13. Among the authors of the letter, one of the "fathers of the internet," Vint Cerf, and the inventor of the World Wide Web, Tim Berners-Lee, have signed on. Open source do-gooders like the co-founder of Wikipedia, Jimmy Wales, and the founder of the Internet Archive, Brewster Kahle, also expressed their opposition to the proposal. In the letter, they write:
By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.
Europe has been served well by the balanced liability model established under the Ecommerce Directive, under which those who upload content to the Internet bear the principal responsibility for its legality, while platforms are responsible to take action to remove such content once its illegality has been brought to their attention. By inverting this liability model and essentially making platforms directly responsible for ensuring the legality of content in the first instance, the business models and investments of platforms large and small will be impacted. The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.
Previously, the Ecommerce Directive has protected online platforms from copyright penalties when they are only acting as a conduit for the violation. Article 13 would take away those protections if a website "optimises" content through methods like tagging or algorithmic curation. In one way or another, this would make most websites vulnerable under the law. For example, just imagine Wikipedia suddenly facing a complicated nightmare of rights considerations that would likely make it difficult to even operate in the EU.
Since 2016, lawmakers have been going through varying drafts of the legislation as they faced criticism from academics, human rights groups, online businesses, and others. An effort to create an exception for organisations like Wikipedia used careless legal language and failed to create adequate protections. Throughout the drafting process, there's been hope that lawmakers would come to their senses, but with the vote scheduled to go before the Legal Affairs (JURI) Committee on June 20 or 21, it appears they have settled on this draft.
Not only would Article 13 threaten the many ways that fair use makes the web worth using, it would clearly be more of a burden on smaller platforms, as major platforms where copyright infringement takes place, like YouTube, already use content filtering and have huge piggy banks for legal fees. In their letter, the tech pioneers write:
The cost of putting in place the necessary automatic filtering technologies will be expensive and burdensome, and yet those technologies have still not developed to a point where their reliability can be guaranteed. Indeed, if Article 13 had been in place when Internet's core protocols and applications were developed, it is unlikely that it would exist today as we know it.
The GDPR privacy protections caused a bit of chaos online when they were implemented in Europe last month. But there's plenty of reason to believe that those regulations will work out positively and primarily serve to keep huge platforms like Facebook and Google in check. The mess that Article 13 would create is sure to be much larger, and even in the absence of strict enforcement, it would create a chilling effect on the ways we share information.
What makes this more ridiculous is that it's not even necessary. The EU spent $US400,000 ($528,261) on its own study to measure the negative impact of online copyright violations on legitimate sales. It concluded that, with the exception of "recent top films," the results did not "show robust statistical evidence of displacement of sales by online copyright infringements."
And as the authors of the letter point out, algorithms are shit. YouTube is as invested in the algorithmic identification of content as any company on the planet, and it still requires an army of beleaguered humans to review content that violates its policies. What's more, the bill doesn't punish copyright trolls who abuse the system. Anyone could theoretically upload someone else's work to a copyright filtering system, claim it as their own, and the true owner would potentially have to go to court to work it out. If you need to see why this is a bad idea, recall the time YouTube's algorithm hit a man's video of white noise with five copyright claims, left it up, and monetized it for a third-party that claimed ownership.
Following the repeal of net neutrality and the implementation of the calamitous FOSTA/SESTA act, we're quickly reorganising the way the web fundamentally works because authorities won't listen to internet experts. When the people who built the backbone of the internet come together to tell you that you're going to ruin the internet, you should listen.