Cory Doctorow is a science fiction author, activist, journalist, and blogger. He’s the co-editor of Boing Boing. He works for the Electronic Frontier Foundation, is a MIT Media Lab Research Affiliate, is a Visiting Professor of Computer Science at Open University and co-founded the UK Open Rights Group.
It’s the end-game for Europe’s catastrophic upload filters—and time is running out.
Under the provisions of Article 13 of the proposed new EU Copyright Directive, any service that allows users to post text, sound, or video for public consumption must implement a copyright filter that checks to see whether user contributions match (or are similar to) known copyrighted works. Works that match the filter are censored.
If this sounds familiar, it’s because it’s similar to YouTube’s Content ID system, which costs millions (YouTube said in 2016 it had spent $60 million on maintaining Content ID), and is hated by everyone. Users point out that Content ID blocks all kinds of legitimate material (just uploading static has become impossible, thanks to spurious copyright claims). Large rightsholder groups like Universal Music say that even though they can upload millions of items at a time to YouTube’s blacklist, YouTube is still not catching enough infringing uploads. It’s a clumsy fix, and no one likes it.
The EU proposal doubles down on this failed, $60,000,000 American corporate boondoggle and turns into European law, but expanded to every kind of copyrighted work. Imagine Content ID, but for everything: blog comments, tweets, Github commits, Instagram photos, replies to newspaper articles, rental listings, dating profiles.
Article 13 not only magnifies Content ID’s worst features, it also fails to learn anything from Content ID’s mistakes. For example, Content ID has a serious copyfraud problem: everyone from US presidential candidates to local news broadcasters have falsely claimed copyright over materials that they don’t own, sometimes out of malice and sometimes because they just didn’t care if they censored someone else.
Under the EU proposal, there are no penalties for copyfraud. You could upload all of Wikipedia to WordPress and claim it as your own, and every WordPress site that had ever quoted Wikipedia would be instantly censored, and would stay censored until someone could convince WordPress that you didn’t hold the copyright to all of Wikipedia. Or you could upload the whole Getty Images catalog and no newspaper would be able to tweet stories that included Getty photos. The opportunities for mischief are endless.
Article 13 is often described as balancing the interests of media companies and technology platforms, but it completely omits the interests of the hundreds of millions of Europeans who use the internet but are neither a Big Tech employee or an employee of Big Copyright.
If you post something that is wrongly snared by a filter, either because someone falsely laid claim to it, or because the filter ignored your fair dealing rights, you have no real remedies. You can meekly ask the company to unblock your material, and if you disagree with their (eventual) response, you can hire lawyers and sue to have your material uncensored.
The European Commission, believing that the fuss about Article 13 can be solved with a compromise between giant industries, has sketched out some loose protections in its consideration of the bill. That includes a vague encouragement that member states should have “independent bodies” to assess complaints. It urges rights holders and tech companies to get together to ensure these algorithmic censorship systems are “effective.” And it says that “microenterprises” and others should have to use “proportionate” filters—but nonetheless must implement those filters to avoid copyright liability.
None of those solutions speak to the needs of individual users. Instead, this is a race to the bottom: When it comes to avoiding liability, we know most tech companies will err on the side of their own legal safety, even if that leads to some of their users’ content being kept permanently offline. If only those tech companies and the major rights holders are in the room, the last thing they’ll be concerned about is users’ putting up content that doesn’t make either of them money—like parodies, or game reviews, or fan fiction, or people filming their everyday lives with unlicensed music playing in the background. They’ll strike a deal, just as Google did with Hollywood and the music industry over YouTube—and cut individual Internet users out of it.
Upload filters were a bad idea when a giant American company rolled them out voluntarily, and they’re an even worse idea now that the EU wants to force every European competitor to beat US Big Tech in its race to the bottom. It turns an inter-industry bargain that made YouTube a frustrating place for many creators, into an unavoidable, automated censorship barrier for every Internet user in Europe. What’s more, the only large scale providers of these black-box filters are other big US tech giants, meaning everything intended for publication by and for EU internet users will have to make a round-trip through an American server, allowing US corporations to spy on and censor the public discourse of Europeans, and get paid millions for doing so.
If this all strikes you as so destructive and unworkable that it can’t possibly be true, you’re half-right: it is destructive and unworkable— and it’s also true. The European Parliament is genuinely about to turn this foolish, terrible idea into the law of 28 countries.
The European Parliament’s Legal Affairs committee will vote on this proposal on June 20 or 21. Your MEP needs to hear from you today. Call or email them now.
More importantly: Tell your friends. Whether its dating sites, online auctions, source code management, or social media, every service that lets people talk to each other is covered by this awful, looming proposal that treats the internet like cable TV, where big companies license material from each other and the rest of us dribble passively in front of a screen, watching whatever we’ve been given, unable to upload back.