After the EU Copyright Directive passed with a slim majority that only carried because some MEPs got confused and pressed the wrong button, the government of Poland filed a legal challenge with the European Court of Justice, arguing that the Directive — and its rule requiring that all online discourse be filtered by black-box algorithms that will block anything that might be infringing — violated both Polish and European law.
Now, the first official documents from that court challenge have been made public for the first time. As expected, the challenge asks the court to rule on whether filters are “proportional and necessary” to preventing copyright infringement.
Poland has asked the court, at a minimum, to strike parts b) and c) of Article 17 (originally Article 13). These are the rules that require online providers to make “best efforts to ensure the unavailability” of works that someone, somewhere has claimed as their copyrighted work; and to make “best efforts to prevent their future uploads.”
Poland’s anticipated that the court may find that removing these parts will prove difficult, and so it’s proposed that, as an alternative, the court could just strike down all of Article 17.
The Republic of Poland claims specifically that the imposition on online content-sharing service providers of the obligation to make best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information (point (b) of Article 17(4) of [EU Copyright] Directive 2019/790) and the imposition on online content-sharing service providers of the obligation to make best efforts to prevent the future uploads of protected works or other subject-matter for which the rightsholders have lodged a sufficiently substantiated notice (point (c), in fine, of Article 17(4) of Directive 2019/790) make it necessary for the service providers — in order to avoid liability — to carry out prior automatic verification (filtering) of content uploaded online by users, and therefore make it necessary to introduce preventive control mechanisms. Such mechanisms undermine the essence of the right to freedom of expression and information and do not comply with the requirement that limitations imposed on that right be proportional and necessary.
It’s On: Details Emerge Of Polish Government’s Formal Request For Top EU Court To Throw Out Upload Filters [Glyn Moody/Techdirt]