Thursday, June 14, 2018

EU Copyright Directive and Article 13 change would require mandatory pre-screening filters for copyright, but where? What would happen in the U.S.?

The EU Copyright Directive threat thickens.  Now EFF offers a letter from a number of Internet personalities, indicating that in Europe, at least, filtering would be mandatory. 

Perhaps worse is a “link tax” proposal which would apply to any news snippet or quote used to attract attention to a link to a news story, as explained here by Jeremy Malcolm. 
In Europe, a publisher would not be free to offer its material to a “creative commons”.  This has already happened in Spain, which caused Google news to pull out.

What is behind this?  Why shouldn’t a publisher who owns his material offer it for free if it wants?  In fact, I’ve been criticized for competing with myself by offering my book text free online, when the publisher price (except for Kindle) is way too high (and I’m getting calls from companies offering deals to somehow buy down these list prices – another business model).  One time I had a conversation with Mark Cuban (Blogmaverick) about this by email, and Mark said bluntly that many establishment publishers would view me as unfair competition because I have low costs (no unions, no employees, no guilds).  I think it’s rather silly to imagine that “Do Ask Do Tell” could threaten the financial viability of Marvel and Disney and billion dollar movie blockbusters.  (Cuban would probably be a decent POTUS  And, Oh yes, I did tweet that Marvel could use David Hogg as a new superhero playing himself.  I am hardly a threat to any studio.)

Then, let’s remember the Righthaven mess of about a decade ago, where a copyright troll sued bloggers for unlicensed quotes (and photos) from plaintiff small-town newspapers, under a theory that the troll was protecting old fashioned newspapers from going out of business.
“Protectionism doesn’t protect.”  I just tweeted that.

It really does sound as though the mandatory filters in EU would prohibit an author from posting his own content for free if it were sold in book form through normal publishing (even self-published).

But what sounds more relevant is the question as to where the directive would take effect. 

Would a platform have to filter all content if it could be viewed from inside the EU, or could it block a site that had not been screen from viewing in the EU altogether?  Or would this only apply to content uploaded by users or customers within the EU?  I am trying to find out.  It’s relevant that EU law doesn’t have a “fair use” doctrine like the US.

Furthermore, despite all the attention to large social media platforms, who do have the resources to do some automated filtering (however fuzzy and inaccurate) hosting providers, who service customers who run their own websites (often with Wordpress) could not possibly screen all content before posted for hypothetical copyright infringement of some EU publishers.

In the U.S., major media have paid zero attention to this issue, so far.  

In May, 2017, Jeremy Malcom of EFF had warned of a preview in the US to what has blown up in Europe: the concept of an “imaginary value gap” among legacy music and film sites and probably book publishers, having to compete with lower cost content that piggybacks on establishment work.
Oh, “Article 13” reminds me of “Article 15” when I was in the Army.  No, I never got one, and no, it won’t ruin your life.

Update: Later June 14

Ars Technica's Glyn Moody writes this "only" applies to providers like Facebook and YouTube and Twitter who sequence content for users.  This would not seem to apply to hosting providers.  The link is here.  The writer's own blog posting on Blogger is here

EFF tells me the rules would apply worldwide to any content if the company had assets in an EU country.  But it's unclear if the company could break off EU assets into separate companies, or the law would apply at the holding company level. 

Axel Voss, architect of Article 13, seems hostile to protecting user generated content if it costs publishers anything, since platforms can leverage it so much relative to "legitimate" content.  He seems to want to go after fake news, too; link

This is obviously not very well thought out by anyone. 

Major Update: June 20

A committee in Brussels passed both Articles 11 (link tax) and 13 (filtering) today, but a final vote in the EU Parliament probably won't happen until December, Verge story

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