Wednesday, September 12, 2018

EU Copyright Directive "passes", leading to a maze of uncertainty even in the US; can the EU "export" article 13 (and "the right to be forgotten")?

The news of the EU vote is now circulating, although the major US news media are slow to pick it up.

The EU parliament did pass the directive early this morning EDT time, although it is not clear yet as to exactly what is in the compromise.  The EDRI press release is here.  It appears that the next vote would come in January (maybe as late as April) and implementation, by country, would start in the early summer of 2019 after the next EU elections.

Julia Alexander has a detailed article in Polygon as to how it may play out, here.
My own biggest concern is how it could affect bloggers (and video vloggers) in the US with material uploaded from outside the EU.

While most of the attention is been on how Google (including YouTube) and Facebook would handle it, we could wonder about the downstream liability risk for conventional hosts. 
Theoretically, even a blog posting uploaded in the US could cause an infringement liability if it happened to mimic European content, even through translation (even given language idioms and the like, as in "Paul" on Language Focus -- the new EU rules would encompass text).  I can’t imagine how a host could screen for this.  Remember there is no allowance for US fair use, or for “creative commons” as we understand it (unless this changes as more details emerge). It might be possible for a hosting  to cut off access to European viewers for non-EU content (much as China does with some sites) to lower the risk.  Google, for example, could stop allowing EU access to Blogger content through “”, etc.  That would mean someone traveling in Europe could not even look at his sites, let alone update them, until returning home (unless he had teammates or employees to do it). (It’s ironic: since the who EU Article-11-13 problem exploded, my own European traffic – especially from France – soared, especially new unique visitors, and exceeds my US traffic.  I do get traffic from China, where I am supposed to be banned, Russia, and Muslim Middle East countries.)
Even that might not be enough. A country could fine a host (whether conventional hosting like GoDaddy, Bluehost, etc, free blogging platforms, or social media like Facebook and Twitter) for allowing “infringement” (even against Fair Use law and with no allowance for Creative Commons) in the US of European materials.  This could seriously compromise all user generated content as we know it now, because no host can know in advance if a particular user is going to infringe. I personally quote European sources rarely (I do refer to UK sources a lot).  It could also lead to international “Righthaven” type suits against even US bloggers by troll farms, although it is hard to imagine if they would get far in US courts.  A good question remains as to whether US-based hosting and social media companies can segregate liability with separate per-country incorporation. There could be questions about whether common ownership (Endurance, near Boston, owns many web hosts) undermines such segregation. Ironically, Trump's "MAGA" views may work in US users' favor, as might having more conservative judges (Kavanaugh) who won't allow foreign countries to interfere with US policy. 
The New York Times has an op-ed by Daphne Keller, Sept. 10, curiously coincidental and prescient with the EU Copyright Directive vote, “Don’t force Google to export other country’s laws”. It discusses a “right to be forgotten case from Austria, and I was told at Cato yesterday that there is another similar case in France. That seems to apply even more to the Copyright Directive. I have been told (as at Cato) that it is easier to separate from Article 11 outside the EU than from Article 13.  (And the EU knows that protectionist, "no spectators" Article 11 was a flop when tried by Spain.)
One might imagine a consequence where Europe turns into another China, as China’s rules don’t have significant effects on ordinary American speech, unless work requires them to travel to China or they need to do business in China and deal with Communism.  You can say something similar about Russia, where the anti-gay propaganda law can become consequential for American visitors or travelers. But European business has always been critical to mainstream tech companies and hosts, who have never segregated off them the way they have with non-democratic countries (and Google now creates controversy in considering offering a censored search engine in China). 

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