EFF calls for reforms – – to the reforms!

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From The 1709 Blog:

As the CopyKat reported earlier this week, the technology sectors are continuing their assault on planned reforms to EU Copyright law, and now the Electronic Frontiers Foundation has joined the likes of Google, YouTube and Facebook in criticising the planned copyright law reforms. In a letter the EFF say has been sent to everyone involved in the upcoming “Trilogues”, the meetings held between representatives from European national governments, the European Commission, and the European Parliament, Cory Doctorow argues that the reforms contained in Articles 11 and 13 of the Copyright Directive are “ill considered and have no place in the Directive”, concluding that instead of effecting some “piecemeal fixes to the most glaring problems”, the Trilogue takes a simpler approach, and removes them from the Directive altogether.

Having previously opined that the vote in the European Parliament that passed the draft Directive “brought the EU much closer to a system of universal mass censorship and surveillance, in the name of defending copyright” and that Articles 13 and 11 would create “upload filters” and the “link tax”, the EFF’s views are perhaps unsurprising – you can make of the points raised as you will, as the letter is set out in full is below:

The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. 

. . . .

 We believe that Articles 11 and 13 are ill-considered and should not be EU law, but even stipulating that systems like the ones contemplated by Articles 11 and 13 are desirable, the proposed text of the articles in both the Parliament and Council texts contain significant deficiencies that will subvert their stated purpose while endangering the fundamental human rights of Europeans to free expression, due process, and privacy.

. . . .

 Article 13: False copyright claims proliferate in the absence of clear evidentiary standards or consequences for inaccurate claims.

Based on EFF’s decades-long experience with notice-and-takedown regimes in the United States, and private copyright filters such as YouTube’s ContentID, we know that the low evidentiary standards required for copyright complaints, coupled with the lack of consequences for false copyright claims, are a form of moral hazard that results in illegitimate acts of censorship from both knowing and inadvertent false copyright claims.

For example, rightsholders with access to YouTube’s ContentID system systematically overclaim copyrights that they do not own. For instance, the workflow of news broadcasters will often include the automatic upload of each night’s newscast to copyright filters without any human oversight, despite the fact that newscasts often include audiovisual materials whose copyrights do not belong to the broadcaster – public domain footage, material used under a limitation or exception to copyright, or material that is licensed from third parties. This carelessness has predictable consequences: others — including bona fide rightsholders — who are entitled to upload the materials claimed by the newscasters are blocked by YouTube and have a copyright strike recorded against them by the system, and can face removal of all of their materials. To pick one example, NASA’s own Mars lander footage was broadcast by newscasters who carelessly claimed copyright on the video by dint of having included NASA’s livestream in their newscasts which were then added to the ContentID database of copyrighted works. When NASA itself subsequently tried to upload its footage, YouTube blocked the upload and recorded a strike against NASA.

In other instances, rightsholders neglect the limitations and exceptions to copyright when seeking to remove content. For example, Universal Music Group insisted on removing a video uploaded by one of our clients, Stephanie Lenz, which featured incidental audio of a Prince song in the background. Even during the YouTube appeals process, UMG refused to acknowledge that Ms. Lenz’s incidental inclusion of the music was fair use – though this analysis was eventually confirmed by a US federal judge. Lenz’s case took more than ten years to adjudicate, largely due to Universal’s intransigence, and elements of the case still linger in the courts.

Finally, the low evidentiary standards for takedown and the lack of penalties for abuse have given rise to utterly predictable abuses. False copyright claims have been used to suppress whistleblower memos detailing flaws in election security, evidence of police brutality, and disputes over scientific publication.

Article 13 contemplates that platforms will create systems to allow for thousands of copyright claims at once, by all comers, without penalty for errors or false claims. This is a recipe for mischief and must be addressed.

Article 13 Recommendations

To limit abuse, Article 13 must, at a minimum, require strong proof of identity from those who seek to add works to an online service provider’s database of claimed copyrighted works and make ongoing access to Article 13’s liability regime contingent on maintaining a clean record regarding false copyright claims.

Rightsholders who wish to make copyright claims to online service providers should have to meet a high identification bar that establishes who they are and where they or their agent for service can be reached. This information should be available to people whose works are removed so that they can seek legal redress if they believe they have been wronged.

In the event that rightsholders repeatedly make false copyright claims, online service providers should be permitted to strike them off of their list of trusted claimants, such that these rightsholders must fall back to seeking court orders – with their higher evidentiary standard – to effect removal of materials.

This would require that online service providers be immunised from Article 13’s liability regime for claims from struck off claimants. A rightsholder who abuses the system should not expect to be able to invoke it later to have their rights policed. This striking-off should pierce the veil of third parties deputised to effect takedowns on behalf of rightsholders (“rights enforcement companies”), with both the third party and the rightsholder on whose behalf they act being excluded from Article 13’s privileges in the event that they are found to repeatedly abuse the system. Otherwise, bad actors (“copyright trolls”) could hop from one rights enforcement company to another, using them as shields for repeated acts of bad-faith censorship.

Online service providers should be able to pre-emptively strike off a rightsholder who has been found to be abusive of Article 13 by another provider.

Statistics about Article 13 takedowns should be a matter of public record: who claimed which copyrights, who was found to have falsely claimed copyright, and how many times each copyright claim was used to remove a work.

Article 11: Links are not defined with sufficient granularity, and should contain harmonised limitations and exceptions.

The existing Article 11 language does not define when quotation amounts to a use that must be licensed, though proponents have argued that quoting more than a single word requires a license.

The final text must resolve that ambiguity by carving out a clear safe-harbor for users, and ensure that there’s a consistent set of Europe-wide exceptions and limitations to news media’s new pseudo-copyright that ensure they don’t overreach with their power.

Additionally, the text should safeguard against dominant players (Google, Facebook, the news giants) creating licensing agreements that exclude everyone else.

News sites should be permitted to opt out of requiring a license for inbound links (so that other services could confidently link to them without fear of being sued), but these opt-outs must be all-or-nothing, applying to all services, so that the law doesn’t add to Google or Facebook’s market power by allowing them to negotiate an exclusive exemption from the link tax, while smaller competitors are saddled with license fees.

As part of the current negotiations, the text must be clarified to establish a clear definition of “noncommercial, personal linking,” clarifying whether making links in a personal capacity from a for-profit blogging or social media platform requires a license, and establishing that (for example) a personal blog with ads or affiliate links to recoup hosting costs is “noncommercial.”

Link to the rest at The 1709 Blog

Regarding Article 11, PG suggests that the overwhelming majority of websites currently published on the internet are anxious for others to link to them. Placing any legal or regulatory barriers, hurdles or speed bumps in the path of such longstanding linking practices is an attack on the very nature of the internet. Hypertext and hyperlinks are foundational to both the logical and technical bases of the internet.

A link tax is a regulatory structure that may benefit a minuscule number of online information providers, a drop in the vast ocean of internet sites and the information they offer, by creating a regulation that threatens the entire ecosystem of that ocean.

A far better approach would be to require those who desire to protect their online information from standard internet protections to establish their own shared protocols and technology that will clearly differentiate the online information for which they wish to charge license fees from the vastly larger and more varied open internet. Browsers and other internet access devices can be redesigned to reject connections to sites operating with such protocols, presumably enforcing a paywall or other limitation on use absent a token provided by such sites that permits the browser to accept connections to that site.

Putting the onus on the small group of profit-seeking information providers to develop a common standard that can be recognized by widely used browsers and other means of accessing online information places the costs of such a new system upon those who wish to use it and intend to profit by it in some respect or otherwise achieve a purpose which is served by isolating such information and services from universal online access.

If such a protocol is properly designed, the potential for innocent or unintended violation of the rights of owners of such protected information will be greatly reduced, if not eliminated. In addition to protecting the greater mass of less-sophisticated users from inadvertent violations of the property rights of those protected by this protocol, it will allow such owners and enforcement authorities to focus on the small group of individuals who wish to improperly steal such information or expose it to wider audiences of viewers who have not paid the required license fee.