ALTERNATIVE VIEW: In this op-ed, Mike Masnick busts the myth busting of major EU publishers who were attempting to counteract criticism of the EU's Copyright Directive's Article 11 "link tax", and why he believes its effects would be so detrimental.
Op-ed by Mike Masnick of Techdirt
A few weeks back we busted the bogus myth busting by the big EU publishers who were trying to fight back against people explaining why the proposed EU Copyright Directive's Article 11 "link tax" was so damaging. That myth buster was so full of nonsense that it was easy to take apart. However, at least the publishers tried to explain their position, even if they failed miserably. Now, on the other bad part of the Copyright Directive, Article 13 with its mandatory upload filters and censorship machines, the UK's music collection society PRS for Music (an organization which, among other things, used to call up random small businesses and, if they heard music in the background, demand a license or claim that you need a performance license to play music to your horses) has now come out with a an Article 13 myth buster claiming to counteract what it claims are myths about that part of the Copyright Directive.
This one is pretty easy to debunk as well, but mainly because... PRS doesn't even bother to make any arguments or cite anything. It basically just makes a claim about what critics are saying and then says "nuh uh" and moves on. Here's the very first "myth" and PRS's attempt at myth busting:
FALSE: Article 13 will censor the internet
It will not lead to censorship of the internet. This argument is not based in fact, and easily dispelled by even a superficial review of the proposed directive. It is being propagated by companies which, ultimately, have a vested interest in not sharing their income fairly with creators.
That's it. No explanation. No, nothing. So, let's myth bust PRS's myth busting. It says "a superficial review of the proposed directive" will show that it won't censor the internet. And, I mean, if you want to be pedantic, of course Article 13 -- as a thing itself -- won't be censoring the internet. But that's not the concern that people have raised. The issue is that Article 13 will force many internet platforms into censoring perfectly legal speech across the internet.
And, because PRS couldn't bother to do so, I'll post the actual text of Article 13 that's so problematic. Here's straight from the proposal that was approved by the EU Parliament's JURI Committee a few weeks ago:
In the absence of licensing agreements with rightsholders online content sharing service providers shall take, in cooperation with rightholders, appropriate and proportionate measures leading to the non-availability of copyright or related-right infringing works or other subject-matter on those services, while non-infringing works and other subject matter shall remain available.
And, yes, it includes the trailing point saying that "non-infringing works" can remain available, but does not bother to point out how you can accomplish the first part while allowing the second as well. Basically everyone who understands how basic technology works recognizes that the only way to have measure that block the availability of copyright infringing works is to put in place a mandatory copyright filter. Those are (1) incredibly expensive and (2) incredibly bad at not taking down non-infringing works. YouTube has spent more money than anyone else on its ContentID filter. In 2016, YouTube revealed it spent $60 million building ContentID (and it's probably significantly more today) and anyone who has any experience with ContentID knows that it's terrible at taking down non-infringing works. It happens multiple times every day.
And yet PRS and other supporters of Article 13 want to imagine that every other online platform -- literally none of which have the resources that Google/YouTube put behind ContentID -- will magically build or buy a better filter that won't censor non-infringing material? What sort of fantasy land are they living in? Because the whole point of Article 13 is to force companies to put in these filters (and to buy licenses), if a platform implements a filter that actually respects fair use and other user rights, you can be damn sure that PRS will be one of the first in lines to sue. I mean, it's already sued other platforms.
So, yes, Article 13 will lead to widespread censorship and PRS must know this or they're even more clueless about technology than I had previously thought.
FALSE: Article 13 will restrict internet users
Article 13 imposes no obligation on users. The obligations relate only to platforms and rightsholders.
Actually, Article 13 makes it easier for users to create, post and share content online, as it requires platforms to get licenses and for rightsholders to ensure these licences cover the acts of all individual users acting in a non–commercial capacity. In short, most users no longer need to obtain separate licences.
Again, this is an incredibly intellectually dishonest framing by PRS. It is correct that Article 13's target is platforms... but it's the users who use these platforms. And if the requirements of Article 13 -- as laid out above -- force these platforms to crack down on how users use the platform (which it totally does), then clearly it will restrict internet users. They won't be able to do the things they want to do on the platforms they have used for years to post their thoughts and writings and memes and music and videos.
FALSE: Article 13 threatens online blogging platforms, code-sharing services and encyclopaedias like Wikipedia
Article 13 would only be applied to certain types of services, specifically those whose main purpose is to make a profit from storing and making available copyright-protected works.
Services operating on a non-commercial basis, or where the presence of copyright works are supplementary, such as blogging sites, are specifically excluded from the requirements to obtain a licence.
Online encyclopaedias and open source software services are also specifically excluded.
Once again, the intellectual dishonesty here is astounding and obnoxious. As PRS knows damn well, the original draft of Article 13 didn't carve out "online encyclopedias and open source software services." The issues was that both Wikipedia and Github pointed out how Article 13 would make their sites illegal... and when the technically clueless drafters of Article 13 realized that might be a problem, rather than go back and rethink the entire approach to Article 13, they just wrote a carve-out for each of those sites, and only those sites. There are thousands of sites (many of which were way too small to get anyone's attention) that will be impacted by Article 13. They didn't get attention for the problems of Article 13, and no carve-out has been written for them.
Pointing to the two specific carve-outs that were written in response to two specific complaints doesn't prove that Article 13 won't threaten various platforms. Also, the definitions of the carve-outs are so specific and so narrowly tailored to Wikipedia and Github as they are today, it could restrict both sites in their ability to grow and launch new services for fear of suddenly being dragged back under Article 13's draconian requirements.
FALSE: Article 13 will stifle creativity This is an argument which is as old as copyright itself and time and again has proven to be untrue.
In fact, the opposite is true, as the proposed changes will benefit creators of user generated content. Under the current system, it is the user who is required to clear the individual rights for the creation.
Once again, this is a "nuh uh" response, rather than any actual rebuttal. It's also wrong. The reason why Article 13 will almost certainly stifle creativity is that it will severely limit the ability of thousands of platforms that content creators rely on today to create, to distribute, to promote, and to sell their works. Can Bandcamp operate under Article 13? It'll be tough and phenomenally expensive. Patreon? Again, incredibly expensive. Kickstarter? Same. Many of these platforms may just leave the EU altogether or put severe restrictions on how the platform is used. That is seriously going to stifle creativity.
Contrary to what the old school recording industry wants you to believe, content creators and the various internet platforms are aligned in their interests. The platforms enable creators to do so much -- often without having to go through the old school gatekeepers. So, yes, it will stifle a massive amount of creativity. Of course, it's the kind of creators that PRS rarely deals with, so why should it care?
FALSE: Article 13 will make memes illegal
Parodies, such as memes, are already covered by exceptions to copyright, and nothing in the proposed Article 13 will allow rightholders to block the use of them.
Parodies are widely available on sites which already deploy content recognition tools and there is no evidence that this process has been detrimental. Currently, it is possible for there to be disputes between uploaders and rightholders as to whether a specific usage is covered by an exception – but the Copyright Directive will not alter this.
Right. Parodies are an exception to copyright. But nowhere does any of the backers of Article 13 explain how the "appropriate measures" to block any infringing works can magically determine what is, and what is not, parody. Or a meme. Indeed, we've already seen over and over again that ContentID -- the one system that has had the most time and investment, has no clue how to figure out "exceptions to copyright" (better described as user rights).
The point of the discussion about memes is not that Article 13 "outlaws" memes, but that is the effective result. Because it will require platforms to put in place filters that make any copyright covered work "non-available," that will naturally sweep up lots of memes, which make use of the work of others. And until we can teach computers to tell what is and what is not fair use or parody or whatever, that's going to block a lot of memes.
And that's not even touching on the point that it's not exactly settled law that "memes are parodies" and are "already covered by exceptions to copyright." There have been quite a few lawsuits over copyright in memes, and it's not at all a settled area of law.
FALSE: Article 13 will kill remixes
Services can be licensed to support remixes – and many already are. Look no further than the recent announcement about Mixcloud’s new licence.
In most cases, mash-ups are covered by existing copyright exceptions (such as parody, criticism, citation). So, they can be created and posted by citizens on the basis of these exceptions.
Notice the nice little twist in the answer here? "Services can be licensed to support remixes." The complaint that people were making is not about services, but about the fact that the standard way in which remixes are made -- whereby amateurs playing around remix stuff for fun and upload it to share... that will no longer be allowed. It will only happen on the few platforms that pay a massive license to allow remixes. And those platforms will have to pay for that license somehow, meaning they're less likely to allow amateurs and those just messing around to use their services for remixes. It seems quite likely that Article 13 will greatly diminish the number of remixes out in the world.
FALSE: Article 13 will be too expensive for small business and start-ups
Article 13 clearly states that Member States shall ensure that the measures shall be appropriate and proportionate, meaning that the types of measures which are deployed must reflect the specific size and scope of the service. The market already provides a wide range of content identification system at a wide range of prices.
Article 13 could clearly state that every EU citizen gets a baby zebra and it would be just as meaningless. A content upload filter is expensive, period. Again, YouTube spent $60 million building its filter. Supporters of Article 13 often like to point to Audible Magic, who sells upload filters, as proof that it's not that expensive. But when we spoke to small and medium sized platforms who have discussed using Audible Magic's filters, it was not at all cheap. One small platform was pitched Audible Magic at around $50k per month. That's over half a million dollars a year. And this was not a large platform. Half a million dollars would bankrupt this platform. So is PRS saying that if a platform can't afford that... it doesn't have to do anything? I highly doubt that, especially given PRS's litigious past against internet platforms.
FALSE: Article 13 is in breach of fundamental privacy rights
Article 13 specifically states that the measures should not require the identification of individual users and the processing of their personal data and should be in full compliance with the General Data Protection Regulation.
Who do we believe? The company that calls up businesses and demands licensing fees if it hears music playing in the background, or the UN's special rapporteur on free speech who said that Article 13 is in clear breach of human rights laws? Yeah, I'm going to go with the latter. As for the specific question on privacy, it seems quite likely that Article 13 will lead to many GDPR violations. Because if it's requiring platforms to take "appropriate measures" to stop users from re-uploading the same works, it's going to need to keep track of users, and what they upload. That's going to be a lot of data -- and some of it may be quite sensitive.
FALSE: Article 13 will result in a monolithic blocking tool to stop content
At the core of this concept is the idea of a super app, which can identify every piece of copyright content across billions of uploads in every EU country – and then block it.
Even putting aside the impracticality of such a concept, the argument is flawed for the simple reason that it assumes creators and producers are incentivised to block access to their works.
Centuries of copyright have proven this is not the case. Indeed, one of the core principles of copyright is that it incentivises the licensing of works. Requiring online platforms to obtain a licence will not lead to mass-scale blocking of copyright works online.
So... wait. Now PRS is admitting that content upload filters are "impractical"? So... why is it supporting a law where the only way to satisfy the law is to implement such a filter or to force every internet platform to buy a license.... oohhhhhhh. I see. PRS doesn't think Article 13 is a problem, since instead of allowing users to upload, PRS is hoping that every platform will just buy a license and only allow uploads from artists it represents.
In other words, PRS is looking forward to the internet being locked down like radio, rather than the internet. It wants a broadcast medium, rather than a communications medium.
As for the claim that creators aren't incentivized to block works -- we've heard that claim before. It's also intellectually dishonest. Yes, most content creators do want their works out there for people to experience. But the copyright holders -- often different than the content creators, mind you -- seem pretty eager to threaten and sue lots of internet platforms for daring to have any of that content ever available without a license.
So, yes, clearly it will be used for censorship. We have dozens of stories on Techdirt alone about copyright -- and filters like ContentID in particular -- being used for censorship. And it goes beyond just professional content creators. We've seen rich billionaires using copyright to censor critics. We've seen Turkey's President Recep Tayyip Erdogan use copyright to censor critics.
Anyone who thinks copyright isn't and won't be used to censor isn't paying attention or is incredibly dishonest. So, PRS, which one is it?
The EU Parliament votes on the Copyright Directive later this week. Don't let PRS for Music and its intellectually dishonest bullshit win out. Tell the EU Parliament to Save Your Internet.