The passage — through MEPs erroneously pushing the wrong buttons! — of the new EU Copyright Directive last March means that online platforms operating in the EU will have to implement filters that allow anyone, anywhere, to claim anything as their copyright, whereupon the platforms will have to detect any attempt by anyone else to upload those claimed works and block them.
Julia Reda (previously) was an MEP during the passage of the Copyright Directive and she led the charge to reform it to remove its most odious and absurd passage. Thanks to her and other organizers, 200,000 Europeans marched in 50+ cities, and 5,000,000 Europeans signed the largest petition in continental history, opposing the inclusion of the filter mandate in the Directive. Despite this unprecedented public opposition and the near-unanimous verdict of security experts, economists, technologists, and scholars that this would not work, MEPs voted in favor of this proposal (notwithstanding that 10 of them got confused and pressed the wrong buttons, and that the proposal only passed by five votes) (no, really).
Writing for Harvard's Berkman Klein Center, Reda explains why Americans should be alarmed at this turn of events: it will cement the dominance of both large platforms and large entertainment conglomerates, at the expense of upstart competitors, like EU-based online platforms that differentiate themselves through promises of better privacy or better moderation; and like small, independent labels and publishers that offer more equitable deals to creators.
Moreover, the filters will perform in ways that are familiar to anyone who pays attention to Google's Content ID (for Youtube) or the filters used on Facebook and other platforms: they will both overblock legitimate creative or critical media, and underblock material that actually infringes copyright.
The Copyright Directive's filter mandate ignores the rich factual record on how his kind of "expedited removal process" gets abused, pressed into service by sleazy "reputation management" companies, search-engine optimizers, stalkers, bullies, harassers, and anyone else who is smart enough to realize that they can make speech that upsets them disappear simply by making false accusations of copyright infringement.
The final text of the filter mandate is "full of contradictions" — as Reda points out, the lawmakers responsible for drafting the rule threw in a bunch of sops to fairness and due process, requiring platforms to respect limitations to copyright (like the exceptions for parody and criticism) while still requiring them to remove content at a scale and speed that is inconceivable without automated filters — which are incapable of distinguishing these legal uses from illegal ones.
The protests against Article 17, mostly driven by young people and organized online, were not in vain. In the final days of the negotiations, the European institutions hastily introduced some safeguards into the text aimed at limiting the negative impact of Article 17 on regular internet users and publishing opinion pieces trying to convince the enraged public that their memes are not in danger. The exceptions for caricature, parody, and quotation, which were previously voluntary for EU countries to implement in their national law, were turned into mandatory users’ rights. Platforms were required to respect these exceptions and limitations and were barred from overwriting them through their terms of service. The ban on general obligations for platforms to monitor all user activity, a mainstay of the old notice-and-takedown regime, was introduced into Article 17. And perhaps most importantly, the requirement was added that the new safe harbor must not lead to the deletion of legal content.
These safeguards, as important as they are, have only led to more confusion among the national lawmakers who are now tasked with implementing the new rules into their national copyright laws by the summer of 2021. How can platforms be forced to filter out infringements without monitoring all user uploads? That is like asking them to find a needle in a haystack without looking at all the hay. How are platforms supposed to ensure that legal content stays online while doing everything they can to delete the legal content? Wrongful copyright claims are commonplace and legal uses are governed by a maze of national copyright exceptions that are often different from one European country to the next.
Where the obligations to protect rightsholders and those to protect users are in clear conflict, national legislators have to make a choice. France has already presented its proposal for national implementation of Article 17, which simply ignores all the mandatory user rights included in the directive. Such a radical approach is likely to violate European law, but until these questions are litigated, other countries may follow France’s example. And across the pond, entertainment companies are invariably going to present this extreme reading of the new rules as a blueprint for the future of US copyright enforcement, “to stay competitive with the EU”. By the time Article 17 is in force and its devastating effects on online freedom become more visible, it may be too late to stop its proliferation.
Why Americans Should Worry About the New EU Copyright Rules [Julia Reda/Berkman Klein Center]
