A new EU copyright bill forces filtering across the internetJune 19, 2018
On June 20th, a committee of the European Parliament will vote on whether to proceed on a copyright proposal that some say will destroy the internet as we know it. That may sound fairly hyperbolic, but over 70 experts — including World Wide Web inventor Tim Berners-Lee and Wikipedia founder Jimmy Wales — have criticized the proposal, saying it will turn the internet into “a tool for the automated surveillance and control of its users.”
The controversial provision in question is Article 13, which requires internet platforms to filter uploads for copyright infringement. If it seems as though Article 13 has sprung up out of nowhere, blindsiding people, it’s because it quite literally has. “It wasn’t going to be in the final draft but it was reintroduced on GDPR day [May 25th, the day GDPR went into effect],” says Cory Doctorow, who is organizing against the proposal with the Electronic Frontier Foundation. Doctorow — whose copyleft views are well known — calls the rest of the EU proposal “a pretty unobjectionable, technical set of revisions to a pretty important statute that has gone long in the tooth.”
For anyone who’s been on the internet long enough, the problem with Article 13 is pretty clear. It’s YouTube Content ID but for the entire internet. Axel Voss, the member of European Parliament who is taking the lead on the copyright bill, has argued that the actual proposed language never mentions a filter, although that just raises the question of what using “effective technologies” to prevent copyright infringement means, other than filtering. Although the most recently revised language exempts sites such as “online encyclopaedias,” clearly aiming to exclude the likes of Wikipedia, Voss has said in the past that he cannot predict which platforms will be affected.
Remember the time YouTube Content ID took down a video with birds chirping in the background because an avant-garde song in its copyright database also had birds chirping in the background? Remember the time NASA’s videos of a Mars landing got taken down by a news agency? Remember the time a live stream got cut off because people started singing “Happy Birthday”? And all this happened despite the fact that Google is really good at what it does.
Opponents of the proposal argue that if smaller platforms are also required to implement upload filtering, it’ll not only be a significant burden to them, but they’re likely to do a much worse job. Placing content-filtering obligations on platforms encourages them to block as much as possible, and it gives them little incentive to let innocent content through. FOSTA in the United States is a good example of how these incentives work. After the passage of the law, which was intended to combat sex trafficking on the internet, Cloudflare dropped Switter, a sex worker-friendly Mastodon instance.
And these are just the immediate problems with Article 13. The long, paranoid view on Article 13 is that it creates a surveillance framework that can be co-opted for bad purposes. If companies already have upload filters for copyright infringement, why not force them to modify their filters for speech that’s critical of the government? That may sound far-fetched, but in 2015, a mysterious firm called Ares Rights started using DMCA takedowns to target sites critical of the Ecuadorian government, sending at least 74 notices on behalf of “politicians, political parties, state media, and state agencies” in Ecuador.
While Article 13 has drawn some public outcry, less attention has been paid to Article 11, which imposes a tax on platforms for linking to news articles. Spain attempted this in 2014, resulting in the temporary closure of Google News Spain. A study in 2015 found that the link tax would ultimately cost publishers millions of dollars in lost revenue and that there was no “theoretical or empirical justification” for the scheme. Julia Reda, a German member of the European Parliament, suggests that the link tax “boosts fake news,” claiming that “legitimate” outlets are more likely to enforce the tax while less-reliable outlets are not.
The European Parliament’s Committee on Legal Affairs (known as JURI) will be voting on June 20th on whether to proceed with the bill. If the committee agrees to proceed, it will then go out for a vote in a plenary session (meaning the rest of the Parliament). According to Doctorow, if that happens, the plenary is likely to pass the bill.
In a way, the EU copyright proposal can be seen as part of a wave of global anti-platform sentiment, like FOSTA, GDPR, and the Cambridge Analytica backlash overall. “We had this very long period where we couldn’t convince people that the conduct of the big platforms was a fit subject for anyone’s scrutiny — privacy or whatever didn’t matter to anyone,” says Doctorow. “And then in a split second, we went from ‘The big platforms aren’t anything we need to worry about’ to ‘The big platforms are incredibly dangerous.’”
Doctorow agrees that the big platforms are dangerous, but he says that Articles 11 and 13 are not the answer, arguing that the provisions will only make it impossible to “break up the big platforms.” The major players would become entrenched, and new startups would be incapable of challenging them.
In the EU, like in the US, two competing views of the internet and its possible futures are at stake. Cory Doctorow, Tim Berners-Lee, Jimmy Wales, Vint Cerf, and others might still believe in an open web of smaller competing platforms that keep information flowing freely, but legislators everywhere seem to have accepted the status quo of a digital landscape that’s dominated by a handful of giants with self-perpetuating silos. New legislation is clearly targeted at Google and Facebook because, for all intents and purposes, governments now think of the entire internet as Google and Facebook.
The internet that Doctorow envisions might never exist again. What the internet can and should look like is a key debate to tackle as new ideas for platform regulation pop up everywhere. In the US, FOSTA may very well be the harbinger of more regulation to come, carrying with it the same kinds of chilling effects as the EU copyright proposal. But at least American legislators were motivated by the specter of sex trafficking when they passed their own sweeping, overbroad mess. Europe is considering doing it over the far less noble cause of enforcing copyright.