Cory Doctorow doesn’t like censorship. He especially doesn’t like his own work being censored.
Anyone who knows Doctorow knows his popular tech and culture blog Boing Boing, and anyone who reads Boing Boing knows Doctorow and his cohort of bloggers. The part-blogger, part special advisor at the online rights group Electronic Frontier Foundation, has written for years on topics of technology, hacking, security research, online digital rights, and censorship and its intersection with free speech and expression.
Yet, this week it looked like his own free speech and expression could have been under threat.
Doctorow revealed in a blog post on Friday that scooter startup Bird sent him a legal threat, accusing him of copyright infringement and that his blog post encourages “illegal conduct.”
In its letter to Doctorow, Bird demanded that he “immediately take[s] down this offensive blog.”
Doctorow declined, published the legal threat, and fired back with a rebuttal letter from the EFF accusing the scooter startup of making “baseless legal threats” in an attempt to “suppress coverage that it dislikes.”
The whole debacle started after Doctorow wrote about about how Bird’s many abandoned scooters can be easily converted into a “personal scooter” by swapping out its innards with a plug-and-play converter kit. Citing an initial write-up by Hackaday, these scooters can have “all recovery and payment components permanently disabled” using the converter kit, available for purchase from China on eBay for about $30.
In fact, Doctorow’s blog post was only two paragraphs long and, though didn’t link to the eBay listing directly, did cite the hacker who wrote about it in the first place — bringing interesting things to the masses in bitesize form in in true Boing Boing fashion.
Bird didn’t like this much, and senior counsel Linda Kwak sent the letter — which the EFF published today — claiming that Doctorow’s blog post was “promoting the sale/use of an illegal product that is solely designed to circumvent the copyright protections of Bird’s proprietary technology, as described in greater detail below, as well as promoting illegal activity in general by encouraging the vandalism and misappropriation of Bird property.” The letter also falsely stated that Doctorow’s blog post “provides links to a website where such Infringing Product may be purchased,” given that the post at no point links to the purchasable eBay converter kit.
EFF senior attorney Kit Walsh fired back. “Our client has no obligation to, and will not, comply with your request to remove the article,” she wrote. “Bird may not be pleased that the technology exists to modify the scooters that it deploys, but it should not make baseless legal threats to silence reporting on that technology.”
The three-page rebuttal says Bird used incorrectly cited legal statutes to substantiate its demands for Boing Boing to pull down the blog post. The letter added that unplugging and discarding a motherboard containing unwanted code within the scooter isn’t an act of circumventing as it doesn’t bypass or modify Bird’s code — which copyright law says is illegal.
As Doctorow himself put it in his blog post Friday: “If motherboard swaps were circumvention, then selling someone a screwdriver could be an offense punishable by a five year prison sentence and a $500,000 fine.”
In an email to TechCrunch, Doctorow said that legal threats “are no fun.”
AUSTIN, TX – MARCH 10: Journalist Cory Doctorow speaks onstage at “Snowden 2.0: A Field Report from the NSA Archives” during the 2014 SXSW Music, Film + Interactive Festival at Austin Convention Center on March 10, 2014 in Austin, Texas. (Photo by Travis P Ball/Getty Images for SXSW)
“We’re a small, shoestring operation, and even though this particular threat is one that we have very deep expertise on, it’s still chilling when a company with millions in the bank sends a threat — even a bogus one like this — to you,” he said.
The EFF’s response also said that Doctorow’s freedom of speech “does not in fact impinge on any of Bird’s rights,” adding that Bird should not send takedown notices to journalists using “meritless legal claims,” the letter said.
“So, in a sense, it doesn’t matter whether Bird is right or wrong when it claims that it’s illegal to convert a Bird scooter to a personal scooter,” said Walsh in a separate blog post. “Either way, Boing Boing was free to report on it,” she added.
What’s bizarre is why Bird targeted Doctorow and, apparently nobody else — so far.
TechCrunch reached out to several people who wrote about and were involved with blog posts and write-ups about the Bird converter kit kit. Of those who responded, all said that they had not received a legal demand from Bird.
We asked Bird why it sent the letter, and if this was a one-off letter or if Bird had sent similar legal demands to others. When reached, a Bird spokesperson did not comment on the record.
All too often, companies send legal threats and demands to try to silence work or findings that they find critical, often using misinterpreted, incorrect or vague legal statutes to get things pulled off from the internet. Some companies have been more successful than others, despite an increase in awareness and bug bounties, and a general willingness to fix security issues before they inevitably become public.
Now Bird becomes the latest in a long list of companies that have threatened reporters or security researchers, alongside companies like drone maker DJI, which in 2017 threatened a security researcher trying to report a bug in good faith, and spam operator River City, which sued a security researcher who found the spammer’s exposed servers and a reporter who wrote about it. Most recently, password manager maker Keeper sued a security reporter claiming allegedly defamatory remarks over a security flaw in one of its products. The case was eventually dropped but not before over 50 experts, advocates, and journalist (including this reporter) signed onto a letter calling for companies to stop using legal threats to stifle — and silence security researcher.
That effort resulted in several companies — notably LinkedIn and Tesla — to double down on their protection of security researchers by changing their vulnerability disclosure rules to promise that the companies will not seek to prosecute hackers acting in good-faith.
But some companies have bucked that trend and have taken a more hostile, aggressive — and regressive — approach to security researchers and reporters.
“Bird Scooters and other dockless transport are hugely controversial right now, thanks in large part to a ‘move-fast, break-things’ approach to regulation, and it’s not surprising that they would want to control the debate,” said Doctorow.
“But to my mind, this kind of bullying speaks volumes about the overall character of the company,” he said.
Dave Davis joined Copyright Clearance Center in 1994 and currently serves as a research analyst. He previously held directorships in both public libraries and corporate libraries and earned joint master’s degrees in Library and Information Sciences and Medieval European History from Catholic University of America.
Back in May, as part of a settlement, Spotify agreed to pay more than $112 million to clean up some copyright problems. Even for a service with millions of users, that had to leave a mark. No one wants to be dragged into court all the time, not even bold, disruptive technology start-ups.
On October 11th, the President signed the Hatch-Goodlatte Music Modernization Act (the “Act”, or “MMA”). The MMA goes back, legislatively, to at least 2013, when Chairman Goodlatte (R-VA) announced that, as Chairman of the House Judiciary Committee, he planned to conduct a “comprehensive” review of issues in US copyright law. Ranking Member Jerry Nadler (D-NY) was also deeply involved in this process, as were Senators Hatch (R-UT) Leahy (D-VT), and Wyden (D-OR). But this legislation didn’t fall from the sky; far from it.
After many hearings, several “roadshow” panels around the country, and a couple of elections, in early 2018 Goodlatte announced his intent to move forward on addressing several looming issues in music copyright before his planned retirement from Congress at the end of his current term (January 2019). With that deadline in place, the push was on, and through the spring and summer, the House Judiciary Committee and their colleagues in the Senate worked to complete the text of the legislation and move it through to process. By late September, the House and Senate versions had been reconciled and the bill moved to the President’s desk.
One part, by far the largest change in terms of money, provides that a new royalty regime be created for digital streaming of musical works, e.g. by services like Spotify and Apple Music. Pre-1972 recordings — and the creators involved in making them (including, for the first time, for audio engineers, studio mixers and record producers) — are also brought under this royalty umbrella.
These are significant, generally beneficial results for a piece of legislation. But to make this revenue bounty fully effective, a to-be-created licensing entity will have to be set up with the ability to first collect, and then distribute, the money. Think “ASCAP/BMI for streaming.” This new non-profit will be the first such “collective licensing” copyright organization set up in the US in quite some time.
Collective Licensing: It’s not “Money for Nothing”, right?
What do we mean by “collective licensing” in this context, and how will this new organization be created and organized to engage in it? Collective licensing is primarily an economically efficient mechanism for (A) gathering up monies due for certain uses of works under copyright– in this case, digital streaming of musical recordings, and (B) distributing the royalty checks back to the rights-holding parties ( e.g. recording artists, their estates in some cases, and record labels). Generally speaking, in collective licensing:
—Fred Haber, VP and Corporate Counsel, Copyright Clearance Center
The Act envisions the new organization as setting up and implementing a new, extensive —and, publicly accessible —database of musical works and the rights attached to them. Nothing quite like this is currently available, although resources like SONY’s Gracenote suggest a good start along those lines. After it is set up and the initial database has a sufficient number of records, the new collective licensing agency will then get down to the business of offering licenses:
— Regan A. Smith, General Counsel and Associate Register of Copyrights
(AP Photo) The Liverpool beat group The Beatles, with John Lennon, Paul McCartney, George Harrison and Ringo Starr, take it easy resting their feet on a table, during a break in rehearsals for the Royal variety show at the Prince of Wales Theater, London, England, November 4, 1963. (AP Photo)
You “Can’t Buy Me Love”, so who is all this going to benefit?
In theory, the listening public should be the primary beneficiary. More music available through digital streaming services means more exposure —and potentially more money —for recording artists. For students of music, the new database of recorded works and licenses will serve to clarify who is (or was) responsible for what. Another public benefit will be fewer actions on digital streaming issues clogging up the courts.
There’s an interesting wrinkle in the Act providing for the otherwise authorized use of “orphaned” musical works such that these can now be played in library or archival (i.e. non-profit) contexts. “Orphan works” are those which may still protected under copyright, but for which the legitimate rights holders are unknown, and, sometimes, undiscoverable. This is the first implementation of orphan works authorization in US copyright law. Cultural services – like Open Culture – can look forward to being able to stream more musical works without incurring risk or hindrance (provided that the proper forms are filled out) and this implies that some great music is now more likely to find new audiences and thereby be preserved for posterity. Even the Electronic Frontier Foundation (EFF), generally no great fan of new copyright legislation, finds something to like in the Act.
In the land of copyright wonks, and in another line of infringement suits, this resolution of the copyright status of musical recordings released before 1972 seems, in my opinion, fair and workable. In order to accomplish that, the Act also had to address the matter of the duration of these new copyright protections, which is always (post-1998) a touchy subject:
For recordings first published before 1923, the additional time period ends on December 31, 2021.
For recordings created between 1923-1946, the additional time period is 5 years after the general 95-year term.
For recordings created between 1947-1956, the additional time period is 15 years after the general 95-year term.
For works first published between 1957-February 15, 1972 the additional time period ends on February 15, 2067.
This new legislation, now the law of the land, extends the history of American copyright law in new and substantial ways. Its actual implementation is only now beginning. Although five years might seem like a lifetime in popular culture, in politics it amounts to several eons. And let’s not lose sight of the fact that the industry got over its perceived short-term self-interests enough, this time, to agree to support something that Congress could pass. That’s rare enough to take note of and applaud.
This law lacks perfection, as all laws do. The licensing regime it envisions will not satisfy everyone, but every constituent, every stakeholder, got something. From the perspective of right now, chances seem good that, a few years from now, the achievement of the Hatch-Goodlatte Music Modernization Act will be viewed as a net positive for creators of music, for the distributors of music, for scholars, fans of ‘open culture’, and for the listening public. In copyright, you can’t do better than that.
European Union lawmakers are facing a major vote on digital copyright reform proposals on Wednesday — a process that has set the Internet’s hair fully on fire.
Here’s a run down of the issues and what’s at stake…
The most controversial component of the proposals concerns user-generated content platforms such as YouTube, and the idea they should be made liable for copyright infringements committed by their users — instead of the current regime of takedowns after the fact (which locks rights holders into having to constantly monitor and report violations — y’know, at the same time as Alphabet’s ad business continues to roll around in dollars and eyeballs).
Critics of the proposal argue that shifting the burden of rights liability onto platforms will flip them from champions to chillers of free speech, making them reconfigure their systems to accommodate the new level of business risk.
More specifically they suggest it will encourage platforms into algorithmically pre-filtering all user uploads — aka #censorshipmachines — and then blinkered AIs will end up blocking fair use content, cool satire, funny memes etc etc, and the free Internet as we know it will cease to exist.
Backers of the proposal see it differently, of course. These people tend to be creatives whose professional existence depends upon being paid for the sharable content they create, such as musicians, authors, filmmakers and so on.
Their counter argument is that, as it stands, their hard work is being ripped off because they are not being fairly recompensed for it.
Consumers may be the ones technically freeloading by uploading and consuming others’ works without paying to do so but creative industries point out it’s the tech giants that are gaining the most money from this exploitation of the current rights rules — because they’re the only ones making really fat profits off of other people’s acts of expression. (Alphabet, Google’s ad giant parent, made $31.16BN in revenue in Q1 this year alone, for example.)
YouTube has been a prime target for musicians’ ire — who contend that the royalties the company pays them for streaming their content are simply not fair recompense.
The second controversy attached to the copyright reform concerns the use of snippets of news content.
European lawmakers want to extend digital copyright to also cover the ledes of news stories which aggregators such as Google News typically ingest and display — because, again, the likes of Alphabet is profiting off of bits of others’ professional work without paying them to do so. And, on the flip side, media firms have seen their profits hammered by the Internet serving up free content.
The reforms would seek to compensate publishers for their investment in journalism by letting them charge for use of these text snippets — instead of only being ‘paid’ in traffic (i.e. by becoming yet more eyeball fodder in Alphabet’s aggregators).
Critics don’t see it that way of course. They see it as an imposition on digital sharing — branding the proposal a “link tax” and arguing it will have a wider chilling effect of interfering with the sharing of hyperlinks.
They argue that because links can also contain words of the content being linked to. And much debate has raged over on how the law would (or could) define what is and isn’t a protected text snippet.
They also claim the auxiliary copyright idea hasn’t worked where it’s already been tried (in Germany and Spain). Google just closed its News aggregator in the latter market, for example. Though at the pan-EU level it would have to at least pause before taking a unilateral decision to shutter an entire product.
Germany’s influential media industry is a major force behind Article 11. But in Germany a local version of a snippet law that was passed in 2013 ended up being watered down — so news aggregators were not forced to pay for using snippets, as had originally been floated.
Without mandatory payment (as is the case in Spain) the law has essentially pitted publishers against each other. This is because Google said it would not pay and also changed how it indexes content for Google News in Germany to make it opt-in only.
That means any local publishers that don’t agree to zero-license their snippets to Google risk losing visibility to rivals that do. So major German publishers have continued to hand their snippets over to Google.
But they appear to believe a pan-EU law might manage to tip the balance of power. Hence Article 11.
Awful amounts of screaming
For critics of the reforms, who often sit on the nerdier side of the spectrum, their reaction can be summed up by a screamed refrain that IT’S THE END OF THE FREE WEB AS WE KNOW IT.
A coalition of original Internet architects, computer scientists, academics and others — including the likes of world wide web creator Sir Tim Berners-Lee, security veteran Bruce Schneier, Google chief evangelist Vint Cerf, Wikipedia founder Jimmy Wales and entrepreneur Mitch Kapor — also penned an open letter to the European Parliament’s president to oppose Article 13.
In it they wrote that while “well-intended” the push towards automatic pre-filtering of users uploads “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”.
There is more than a little irony there, though, given that (for example) Google’s ad business conducts automated surveillance of the users of its various platforms for ad targeting purposes — and through that process it’s hoping to control the buying behavior of the individuals it tracks.
At the same time as so much sound and fury has been directed at attacking the copyright reform plans, another very irate, very motivated group of people have been lustily bellowing that content creators need paying for all the free lunches that tech giants (and others) have been helping themselves to.
But the death of memes! The end of fair digital use! The demise of online satire! The smothering of Internet expression! Hideously crushed and disfigured under the jackboot of the EU’s evil Filternet!
And so on and on it has gone.
(For just one e.g., see the below video — which was actually made by an Australian satirical film and media company that usually spends its time spoofing its own government’s initiatives but evidently saw richly viral pickings here… )
For a counter example, to set against the less than nuanced yet highly sharable satire-as-hyperbole on show in that video, is the Society of Authors — which has written a 12-point breakdown defending the actual substance of the reform (at least as it sees it).
A topline point to make right off the bat is it’s hardly a fair fight to set words against a virally sharable satirical video fronted by a young lady sporting very pink lipstick. But, nonetheless, debunk the denouncers these authors valiantly attempt to.
To wit: They reject claims the reforms will kill hyperlinking or knife sharing in the back; or do for online encyclopedias like Wikimedia; or make snuff out of memes; or strangle free expression — pointing out that explicit exceptions that have been written in to qualify what it would (and would not) target and how it’s intended to operate in practice.
Wikipedia, for example, has been explicitly stated as being excluded from the proposals.
But they are still pushing water uphill — against the tsunami of DEATH OF THE MEMES memes pouring the other way.
Russian state propaganda mouthpiece RT has even joined in the fun, because of course Putin is no fan of EU…
The Society of Authors makes the very pertinent point that tech giants have spent millions lobbying against the reforms. They also argue this campaign has been characterised by “a loop of misinformation and scaremongering”.
So, basically, Google et al stand accused of spreading (even more) fake news with a self-interested flavor. Who’d have thunk it?!
Dollar bills standing on a table in Berlin, Germany. (Photo by Thomas Trutschel/Photothek via Getty Images)
The EU’s (voluntary) Transparency Register records Google directly spending between $6M and $6.4M on regional lobbying activities in 2016 alone. (Although that covers not just copyright related lobbying but a full laundry list of “fields of interest” its team of 14 smooth-talking staffers apply their Little Fingers to.)
But the company also seeks to exert influence on EU political opinion via membership of additional lobbying organizations.
And the register lists a full TWENTY-FOUR organizations that Google is therefore also speaking through (by contrast, Facebook is merely a member of eleven bodies) — from the American chamber of Commerce to the EU to dry-sounding thinktanks, such as the Center for European Policy Studies and the European Policy Center. It is also embedded in startup associations, like Allied for Startups. And various startup angles have been argued by critics of the copyright reforms — claiming Europe is going to saddle local entrepreneurs with extra bureaucracy.
Google’s dense web of presence across tech policy influencers and associations amplifies the company’s regional lobbying spend to as much as $36M, music industry bosses contend.
Though again that dollar value would be spread across multiple GOOG interests — so it’s hard to sum the specific copyright lobbying bill. (We asked Google — it didn’t answer). Multiple millions looks undeniable though.
Of course the music industry and publishers have been lobbying too.
But probably not at such a high dollar value. Though Europe’s creative industries have the local contacts and cultural connections to bend EU politicians’ ears. (As, well, they probably should.)
Seasoned European commissioners have professed themselves astonished at the level of lobbying — and that really is saying something.
Yes there are actually two sides to consider…
Returning to the Society of Authors, here’s the bottom third of their points — which focus on countering the copyright reform critics’ counterarguments:
The proposals aren’t censorship: that’s the very opposite of what most journalists, authors, photographers, film-makers and many other creators devote their lives to.
Not allowing creators to make a living from their work is the real threat to freedom of expression.
Not allowing creators to make a living from their work is the real threat to the free flow of information online.
Not allowing creators to make a living from their work is the real threat to everyone’s digital creativity.
Stopping the directive would be a victory for multinational internet giants at the expense of all those who make, enjoy and enjoy using creative works.
Certainly some food for thought there.
But as entrenched, opposing positions go, it’s hard to find two more perfect examples.
And with such violently opposed and motivated interest groups attached to the copyright reform issue there hasn’t really been much in the way of considered debate or nuanced consideration on show publicly.
But being exposed to endless DEATH OF THE INTERNET memes does tend to have that effect.
What’s that about Article 3 and AI?
There is also debate about Article 3 of the copyright reform plan — which concerns text and data-mining. (Or TDM as the Commission sexily conflates it.)
The original TDM proposal, which was rejected by MEPs, would have limited data mining to research organisations for the purposes of scientific research (though Member States would have been able to choose to allow other groups if they wished).
This portion of the reforms has attracted less attention (butm again, it’s difficult to be heard above screams about dead memes). Though there have been concerns raised from certain quarters that it could impact startup innovation — by throwing up barriers to training and developing AIs by putting rights blocks around (otherwise public) data-sets that could (otherwise) be ingested and used to foster algorithms.
Or that “without an effective data mining policy, startups and innovators in Europe will run dry”, as a recent piece of sponsored content inserted into Politico put it.
That paid for content was written by — you guessed it! — Allied for Startups.
Aka the organization that counts Google as a member…
The most fervent critics of the copyright reform proposals — i.e. those who would prefer to see a pro-Internet-freedoms overhaul of digital copyright rules — support a ‘right to read is the right to mine’ style approach on this front.
So basically a free for all — to turn almost any data into algorithmic insights. (Presumably these folks would agree with this kind of thing.)
Middle ground positions which are among the potential amendments now being considered by MEPs would support some free text and data mining — but, where legal restrictions exist, then there would be licenses allowing for extractions and reproductions.
And now the amendments, all 252 of them…
The whole charged copyright saga has delivered one bit of political drama already — when the European Parliament voted in July to block proposals agreed only by the legal affairs committee, thereby reopening the text for amendments and fresh votes.
So MEPs now have the chance to refine the parliament’s position via supporting select amendments — with that vote taking place next week.
There are 252 in all! Which just goes to show how gloriously messy the democratic process is.
It also suggests the copyright reform could get entirely stuck — if parliamentarians can’t agree on a compromise position which can then be put to the European Council and go on to secure final pan-EU agreement.
So, for example, she argues that amendments to add limited exceptions for platform liability would still constitute “upload filters” (and therefore “censorship machines”).
Her preference would be deleting the article entirely and making no change to the current law. (Albeit that’s not likely to be a majority position, given how many MEPs backed the original Juri text of the copyright reform proposals 278 voted in favor, losing out to 318 against.)
But she concedes that limiting the scope of liability to only music and video hosting platforms would be “a step in the right direction, saving a lot of other platforms (forums, public chats, source code repositories, etc.) from negative consequences”.
She also flags an interesting suggestion — via another tabled amendment — of “outsourcing” the inspection of published content to rightholders via an API”.
“With a fair process in place [it] is an interesting idea, and certainly much better than general liability. However, it would still be challenging for startups to implement,” she adds.
Reda has also tabled a series of additional amendments to try to roll back what she characterizes as “some bad decisions narrowly made by the Legal Affairs Committee” — including adding a copyright exception for user generated content (which would essentially get platforms off the hook insofar as rights infringements by web users are concerned); adding an exception for freedom of panorama (aka the taking and sharing of photos in public places, which is currently not allowed in all EU Member States); and another removing a proposed extra copyright added by the Juri committee to cover sports events — which she contends would “filter fan culture away“.
So is the free Internet about to end??
MEP Catherine Stihler, a member of the Progressive Alliance of Socialists and Democrats, who also voted in July to reopen debate over the reforms reckons nearly every parliamentary group is split — ergo the vote is hard to call.
“It is going to be an interesting vote,” she tells TechCrunch. “We will see if any possible compromise at the last minute can be reached but in the end parliament will decide which direction the future of not just copyright but how EU citizens will use the internet and their rights on-line.
“Make no mistake, this vote affects each one of us. I do hope that balance will be struck and EU citizens fundamental rights protected.”
So that sort of sounds like a ‘maybe the Internet as you know it will change’ then.
Other views are available, though, depending on the MEP you ask.
We reached out to Axel Voss, who led the copyright reform process for the Juri committee, and is a big proponent of Article 13, Article 11 (and the rest), to ask if he sees value in the debate having been reopened rather than fast-tracked into EU law — to have a chance for parliamentarians to achieve a more balanced compromise. At the time of writing Voss hadn’t responded.
Voting to reopen the debate in July, Stihler argued there are “real concerns” about the impact of Article 13 on freedom of expression, as well as flagging the degree of consumer concern parliamentarians had been seeing over the issue (doubtless helped by all those memes + petitions), adding: “We owe it to the experts, stakeholders and citizens to give this directive the full debate necessary to achieve broad support.”
MEP Marietje Schaake, a member of the Alliance of Liberals and Democrats for Europe, was willing to hazard a politician’s prediction that the proposals will be improved via the democratic process — albeit, what would constitute an improvement here of course depends on which side of the argument you stand.
But she’s routing for exceptions for user generated content and additional refinements to the three debated articles to narrow their scope.
Her spokesman told us: “I think we’ll end up with new exceptions on user generated content and freedom of panorama, as well as better wording for article 3 on text and data mining. We’ll end up probably with better versions of articles 11 and 13, the extent of the improvement will depend on the final vote.”
The vote will be held during an afternoon plenary session on September 12.
Europe is considering changing its copyright law. At first blush, you might think this couldn’t possibly affect the way you debate the news of the day online, upload family videos or run your startup. But popular proposals at the EU would strike at the heart of the internet’s openness and accessibility as a platform by raising new barriers to interactive online services around the world.
The goal of these copyright changes is to adopt new protections for publishers and artists. But if they are put in place, the burdens they would place on internet platforms would curtail the kind of quick uploading, sharing, commenting and responding that makes the Web so useful. Additionally, we have no reason to believe that these new plans would actually benefit the journalists and artists in whose name the measures are being proposed.
Take one proposal: a fee payable to news publishers when online platforms such as search engines and news aggregators reproduce even short excerpts of news, typically accompanied by a link to the original article (hence the proposal has been called a “link tax”).
Although the link tax is intended to address a real problem (declining revenues of news publishers has affected their ability to fund quality journalism), similar laws introduced in Germany and Spain further decreased publishers’ revenue by reducing their traffic from links on third-party websites.
A second European proposal would create a new obligation for websites that host content uploaded by users to install automatic filters to scan that content for matches with copyright works, as a basis for new revenue-sharing arrangements that they would be forced to enter into with copyright owners.
Among many problems with this second “upload filtering” proposal, not the least is that it may contravene European law, which explicitly disallows any obligation on internet platforms to conduct general monitoring of what their users do — which this proposal seems to require. There also are insurmountable problems with entrusting algorithms to distinguish infringing uses of copyright materials from legal ones.
The exact language of the two proposals is in flux, because they are each the subject of ongoing compromise negotiations between three institutions of the European Union. Those contentious negotiations were due to wrap up next month, but signs point to a likely extension.
Should these measures pass, it won’t just be European internet platforms that are affected.
However, should these measures pass, it won’t just be European internet platforms that are affected. Indeed, they are largely aimed at U.S.-based internet companies, which are distrusted and resented in Brussels. (Though it’s worth noting that when the Spanish version of the link tax passed into law, Google responded by shutting down its Google News service in Spain rather than paying the tax.)
Yet a lot more is at stake than the fate of Google or Facebook. Those companies at least can afford the cost of complying with (or avoiding) Europe’s copyright proposals. Smaller businesses can’t. For example, medium-sized internet platforms pay between $10,000 and $25,000 a month in licensing fees for a common tool that conducts a copyright scan of uploaded audio files, an impost that could wipe out a new startup.
Also, bad European copyright law has often heralded damaging changes to American copyright legislation. It was Europe that in 1993 first extended the term of copyright protection to 70 years from the death of the author, beating America by five years. European countries were also the first signatories to the most important international treaty on copyright, the Berne Convention, which America only adopted a full century later.
The same could be happening again, as Europe considers changing its copyright law to adopt new protections for publishers and new burdens on internet platforms — changes that, if adopted across the Atlantic, could be a prelude to the adoption of similar measures here as well, with harmful consequences.
In its zeal to advance the interests of copyright owners, Europe should be careful that it does not wreak long-term damage to the internet ecosystem by making it harder for startups and small enterprises to innovate and succeed on either side of the Atlantic.