The parliament of the European Union narrowly voted down legislation intended to control copyright violations on the internet. The sponsors of the legislation argued that multinational internet companies like Google were essentially stealing content from newspapers and publishers. Their proposed fix would have levied what critics called a “link tax” on hyperlinked content, making it prohibitively expensive for a program like Google News to aggregate news content. In addition, the rules would have essentially forced platforms like Youtube that rely on user-uploaded content, like Youtube, to put in place content filters to screen out copyrighted content. However, the expense of these filters and regulatory compliance would have, ironically, given the major companies an advantage over smaller startups, leading to a less competitive internet. In addition, the content filters would have accidentally excluded legitimate non-copyrighted material, including memes, parodies, and covers. Although this was European legislation, the legislation has implications for American regulatory policy, including the new SESTA/FOSTA rules.
In this article, Mike argues that this legislation would turn the internet into tv, “a limited broadcast medium only for those who are pre-checked by gatekeepers.”
Any content filter will accidentally exclude legitimate conflict. Here Mike crunches the potential false positive rate.
Paul has argued before that the SESTA/FOSTA legislation will have ill unintended consequences.
One of the most important opponents of this legislation has been European Parliament member Julia Reda, representative of the Pirate Party.
00:05 Paul Matzko: Welcome to Building Tomorrow, a show that explores the ways tech innovation and entrepreneurship are creating a freer, wealthier and more peaceful world as always, I’m your host, Paul Matzko and with me in the studio…
00:17 Will Duffield: Will Duffield, a research assistant here at Cato and editor of Libertarianism.org’s Prototype.
00:23 Paul Matzko: This week, we’re going to discuss a proposal from the European Union that would change how copyright law functions in relation to the internet. I promise you it is way more interesting than that bare description sounds. To help us out in the conversation, we’ve asked Mike Masnick, founder of the tech news site Techdirt to join us today, welcome to the show, Mike.
00:44 Michael Masnick: Hey thanks for having me.
00:45 Paul Matzko: Mike you’ve written quite a few articles on Techdirt about the Copyright Directive and we’re gonna get down in the weeds about some of the implications, some of the individual articles, but before we get there, why don’t we start with the basics, so this legislation, it’s proposed in the EU as the Copyright Directive; what’s the point of the bill, what’s it ostensibly supposed to do?
01:07 Michael Masnick: So it’s something that’s been discussed for a really long time [chuckle], in the EU and the original idea behind it actually makes some amount of sense, and it was a recognition that within all the different member states of the EU, there were all different copyright laws and that actually many people believe with probably good reason was limiting the ability of various copyright-related industries to develop all that broadly because if you could work on something that made sense into the copyright laws of France, but did not apply in Spain, that just became a problem. So it had become difficult for in particular, music and video services to develop across Europe or across the EU specifically because of the different laws in different places. So the original idea was, behind the Copyright Directive is can we set up a system that effectively would harmonize copyright law across the EU, and hopefully then unleash new businesses and services based on copyright?
02:23 Paul Matzko: And it makes sense, it’d be like if every state in the US had a different set of copyright rules that would be…
02:29 Michael Masnick: Right. Well it…
02:30 Paul Matzko: That’d be a real mess.
02:31 Michael Masnick: Yeah. Though to some extent, there was a period [chuckle] when we had some of that. And it’s interesting, this might be going a little bit off on a tangent very early in the podcast, but there is an argument that there is some value in actually doing it that way, in that you do get experimentation and you do begin to see, if one state or country has very permissive copyright laws, does something more interesting develop there? Versus very lock down copyright laws. But in practice, it hasn’t really worked that way, especially just because of the nature of the internet and the fact that borders don’t really matter that much on the internet. You do kind of want something that is more broadly applicable, if you’re going to build a kind of service or business that wants to be global. So yeah, I think the underlying concept of harmonizing the basic idea definitely does make sense.
03:30 Paul Matzko: There’s nothing wrong with it in theory. Yeah, Will?
03:32 Will Duffield: And you see some of this tension in any move towards regulatory harmonization. The question then becomes, which way are you harmonizing?
03:39 Michael Masnick: Right. Exactly, and that’s a really good point where it’s like if you’re harmonizing it in a way that is highly restrictive and problematic or that limits industry or that locks in certain winners and losers, that’s a problem if it really is opening up new opportunities for competition and innovation, then that is potentially more appealing, but which of those comes out of it is kind of the big question as always. And unfortunately, in lots of these processes of course certain industries are able to influence the way things go, so that it does favor them and does hinder competition.
04:21 Paul Matzko: So I think now we can probably break down some of the specific proposals. As an entire policy package, there’s lots of pieces that are just about the harmonization that are not overly stringent, but in looking at the criticisms of the kind of omnibus bill, there were two articles in particular that stood out for a lot of criticism, Articles 11 and 13. So why don’t we go through those one at a time, what they propose and why critics are worried about the implications of applying those articles to the entire EU. So Article 11, that’s the link tax, do I have that right?
05:00 Michael Masnick: Well, the people who wrote it and support it would take exception to that and say, “It’s not a link tax, don’t call it a link tax.” [chuckle] But yes, critics of it are referring to it as the link tax, it could also be called a neighboring right or an ancillary right or…
05:17 Paul Matzko: That sounds a lot friendlier, doesn’t it? Yeah, neighbor… Neighboring right.
05:19 Michael Masnick: Yeah, I mean, sure neighboring right [chuckle] certainly sounds friendly in some weird way.
05:25 Paul Matzko: And how would that work functionally like so, this neighboring right, when it’s applied, what would it actually do?
05:32 Michael Masnick: Sure, so the idea is right, copyright is granted to whoever creates an original work, right? And then you can transfer that or assign that copyright to somebody else. When you are… If you’re a publisher, say a news publisher, or a newspaper publisher, what normally happens is that you have reporters on staff and they are either on staff or freelance, but they are generally speaking, assigning the copyright of the work to the publisher who holds the copyright on those works, and that is a system that has worked more or less forever [chuckle] since… For the last couple of centuries, at least. But for some reason, a bunch of publishers have decided that in this modern internet era that is no longer enough and they need an additional right, and it is referred to as a neighboring right because it’s not technically a copyright, it is just sort of neighboring [chuckle] copyright, next door to copyright.
06:41 Michael Masnick: And it is a separate right on top of the copyright, not for the creators of the article, not for the journalists, but rather for the publishers themselves over the contents. And the reasoning here or the thought process behind it is that there have been a number of news search engines or news aggregators, with Google News being the most prominent and most well-known that for some reason, publishers, especially in the EU, and we don’t seem to have this complaint in the US, but in the EU a bunch of publishers have just gotten really upset about Google News and they feel that it is somehow unfair to them and the unfairness… And I’m choosing my words carefully because I have a lot of difficulty seeing [chuckle] how Google News is unfair in any way, but I’m trying to be as fair as possible in my description of it.
07:47 Michael Masnick: Google News will aggregate a bunch of different stories together and link people to it and with the news it will show a headline and usually a snippet, which will be like the first two sentences or a couple of sentences out of the first paragraph sometimes. And for some reason, the publishers feel that this is unfairly infringing on their rights, except there is no written right for that. It’s such a tiny amount of text that it’s not violating the copyright and it’s also linking to them thereby sending them traffic, but for whatever reason…
08:33 Paul Matzko: Which normally would be a good thing, right, you’re driving traffic…
08:36 Will Duffield: Presumably most people read beyond the first two lines and want to arrive, end up arriving at the site of the copyright holder.
08:44 Paul Matzko: And it’s possible they’ll click on the banner ads on the site of the publisher, etcetera.
08:50 Michael Masnick: And we can actually see in the expressed preferences of the publishers that they actually know this and they recognize this and there are two ways in which we see that. One is that if they really… If they don’t want to be in Google News, that’s very easy, you can put up robots.txt, a little file on your website that says to Google’s scanning system, “Don’t use these pages.” So you can block Google News. It’s very easy, it takes 10 seconds. So they could do that, they don’t. The second expressed preference that we see is that all of these publishers have search engine optimization people who work very hard to get their sites ranked higher in the search so that more people will find them through search, and go to them and visit them, in order to get traffic. So both of those things make it really clear that they actually do value the traffic that Google sends them. Yet, what seems to be the case is, they’re sort of looking at, and this is me [chuckle] who disagrees with their position, stepping in and stating what I believe their real position is, so take that with whatever grain of salt you want. They seem to be saying that Google’s making a lot of money.
10:08 Michael Masnick: The publishers are not making as much money as they used to, therefore, some of that money that Google’s making should be ours, therefore we need this right, whose only purpose is to say, “Google pay us” in addition to sending us traffic. And so the nature of the right is that if you aggregate and post a snippet of text that you are linking to and you are doing that as a commercial entity, that you have to license those works. In other words, you have to pay in order to link with a snippet.
10:47 Paul Matzko: It seems like a case of legacy paper media versus upstart digital outlets, and there’s been a shift in both influence and in just finances. And it’s because they’re being left behind, that there’s a need to make up the difference in the funding flow. I think we can sympathize with the plight of traditional legacy media, but the idea of taking out that frustration on these new media aggregators is it’s not channeling that energy in a very productive direction.
11:22 Will Duffield: And it’s not going to help these legacy publishers in the end either, because if you make it more difficult for people to link to and therefore other users to access your work, fewer people will see it, fewer people click on the ads, and your revenues continue to decline.
11:38 Paul Matzko: Now, Mike, on one of your articles, you gave the examples of how this legislation was tried out on the small scale, again, a kind of EU laboratory of states situation, that in Germany and Spain, they rolled out similar legislation but that the results were not what the proponents might have expected. Can you explain that for our audience? [chuckle]
12:04 Michael Masnick: Sure, yeah, I mean, there’s a long history with this and it actually starts before the German experiment, which was a bunch of publishers in Belgium actually banded together to try and force Google to pay them, and that was a complete failure. I mean Google sort of took them out of Google News and then they freaked out, again, expressed preference as opposed to stated preference. And it just showed how much they actually valued the traffic from there.
12:40 Michael Masnick: So in Germany, they passed this law that was similar to, to what is in Article 11, saying that aggregators had to get a license in order to do this, and Google responded, a couple of other aggregators responded in different ways, but Google responded by leaving the German publishers in Google News, but removing any snippets with them, leaving snippets for other publications. So because the German text was a little bit different than the Article 11 text. And in the German text, it was very specific about headlines were okay, but snippets were not okay. The Article 11 text is not entirely clear on that. Article 11 text, it could be as little as a single word could be violating Article 11, which is why some people call it the link text and that’s…
13:37 Will Duffield: Because you see descriptions in the links.
13:40 Michael Masnick: Exactly, like if you have a word in the URL, [chuckle] that alone might be enough to trigger an Article 11 issue. But in Germany at least they made it clear that the shortest of snippets wouldn’t count, but not much longer than a very short snippet would count. So, the way Google News responded was they took out the snippet part, they left the headlines, but they took out the snippet of German publishers. And they left in the snippets of non-German publishers and of course, that drove a lot more traffic to the non-German publishers and it significantly reduced the traffic to German publishers, and so the German publishers freaked out and they tried a whole bunch of things, including claiming that this was an anti-trust violation, which was an interesting move which failed pretty dismally in the courts. In fact, the courts came back and more or less… I don’t remember, sorry, I’m blanking now if it was the courts, or if it was like the… It was like…
14:43 Paul Matzko: Legislative committee or something or…
14:44 Michael Masnick: Yeah, like a German anti-trust…
14:47 Paul Matzko: Oh yeah. Agency regulator.
14:49 Michael Masnick: Yeah, regulator, who more or less came back and said, “You know, if there’s any anti-trust issue here, it might be with you guys all colluding [chuckle] to try to enforce.” And sort of hinted at that…
15:01 Paul Matzko: Oops.
15:01 Michael Masnick: And more or less said like, “If you continue to push this we might investigate you rather than Google.” And so they sort of backed off. And then what they did was they actually gave Google a free license, the law required that you need a license, so Google ended up getting a license entirely for free. The snippets came back into Google News, and so now technically, I believe, Google was the only one who actually got that license. You have other aggregators who actually don’t have a license. And so, now what you’ve done is you’ve actually empowered Google to be an even more entrenched player. And…
15:37 Paul Matzko: So, if your concern is anti-trust, you’ve made the biggest, probably the biggest provider more powerful, and the competitors are gonna have to pay. I mean it’s gonna be harder for them.
15:47 Will Duffield: And from the EU’s perspective, a foreign search engine.
15:50 Michael Masnick: Yeah, which is kind of incredible. And so then, you know, soon after that, Spain passed a similar law and Spain looked at what happened in Germany and said, “Well, we’re gonna correct the errors of the German one, to make that not possible.” And so they made it so that you couldn’t get a free license. I forget the exact details of how they worded it, but they basically said, “Well you know, it failed in Germany because of, they were able to sort of force, Google was able to force the hand and get this free license, so you can’t do that in Spain. So the Spanish law has some weird things which also potentially, effectively makes Creative Commons licenses illegal, it messes up all sorts of things, it basically assumes that everything has to be licensed for money. And Google responded to that by saying, “Well we cannot operate Google News in Spain under this law,” and they shut down Google News in Spain.
16:54 Michael Masnick: And so the result of that has been not great. And so there was a study that was done that looked at traffic to different news sources and in particular, to smaller news sites and upstart news sources. It’s been tremendously damaging and they’ve gotten a lot less traffic, because they no longer get any traffic from Google News. And so we have these two examples that show that this kind of law doesn’t work or does more to entrench Google and doesn’t seem to lead to any money changing hands.
17:32 Paul Matzko: But you see Mike, the third or well, the fourth try, it must be the charm.
17:38 Michael Masnick: Yes.
17:38 Paul Matzko: Just keep banging your head against the link tax wall, eventually you’ll break through. [chuckle]
17:42 Michael Masnick: Yeah. I mean there seems to be this odd belief that like, “Well if only the entire EU were covered then magically it’ll work.” And yeah, that does not seem likely to be the case at all.
17:54 Will Duffield: Well, in looking to GDPR, there, you covered all of the EU and you still saw niche services pop-up specifically to block EU users from platforms hosted elsewhere who didn’t want to render themselves compliant.
18:09 Michael Masnick: Yeah, yeah.
18:10 Paul Matzko: As well as to the benefit of larger established outfits, who can afford the cost of the compliance. And there’s kind of a corollary there to the Google News experience in Germany, where the big players are better able to meet the regulations. So Article 11, the link tax, Article 13 then was this mandatory upload filter. What… So for our listeners who don’t… When I say mandatory upload filter, it doesn’t automatically evoke a concept in their mind, what are we talking about? How does an upload filter work?
18:48 Michael Masnick: Yeah, so… And just to clarify here, too, as well, because the supporters of Article 13 would argue that it’s not a mandatory upload filter.
18:56 Paul Matzko: Sure.
18:56 Michael Masnick: And so…
18:57 Paul Matzko: Another dirty word. Yeah.
19:00 Michael Masnick: There on Article 13. So Article 13 is basically saying that if you are a commercial platform that has a lot of copyright covered content, which is basically anything, thanks to the way copyright laws are today, almost anything, as soon as it’s created gets some level of copyright protection, but if you have a lot of it, you have to take appropriate measures to keep certain copyright covered content off of your platform.
19:32 Paul Matzko: So if you’re Instagram or Google or Facebook or whoever, you have to make sure that content produced by your users, so it’s not your own… You’re just the platform hosting it, but content uploaded by your users has to… You have to take these appropriate measures to make sure it’s not something that’s copyrighted?
19:51 Michael Masnick: Well, that’s not unlicensed. Right. Because everything is going to be covered by copyright, for the most part, the vast, vast majority of stuff will have some sort of copyright, even the photos that you take of your dog or whatever, [chuckle] there’s a copyright on them. And so, but… So it requires these appropriate measures and that’s the language that they use to try and claim that this does not require mandatory upload filters. But what everyone has said, and even sometimes the people who are supporting the bill will admit by accident [chuckle] is that they really mean they want everyone to have upload filters. And the idea here is that they’ve seen systems like mainly YouTube’s Content ID, which is this sort of filtering system that will look at a huge database that it has of works that copyright holders have given to YouTube and said, “We don’t want these things appearing on YouTube, or at least we want the ability to monetize them for ourselves or whatever,” and matches against that database.
21:03 Michael Masnick: And so, they’ve… The regulators have decided, “Well, this sort of kind of works for YouTube, therefore it can work for absolutely everything.” And therefore, every commercial service that hosts content for public consumption should be able to install some sort of filter that will make sure that copyright content, that a copyright holder does not want on that platform can be blocked from appearing entirely.
21:29 Paul Matzko: So now, maybe for some of our listeners, they hear that, they say, “Well, YouTube has this system, it works, if imperfectly,” what’s the problem with say, Disney putting up… Basically telling YouTube that they want any Disney movie or clip longer than a certain period of a Disney film, it’s gonna be blocked, there’ll be a cease and desist letter sent, it can be appealed, etcetera, but maybe our listeners might say, “Well, why is that such a bad idea?” What are the unintended consequences of a Content ID program? Even the best ones or the most effective ones?
22:03 Michael Masnick: Sure. Yeah, so there are lots and lots of different consequences. And probably we could take more time than we have for this podcast discussing all the different ones, [chuckle] but at a very basic level, first is just the cost. YouTube has stated publicly that it cost them $60 million to build Content ID, and that’s just for video. So, how many platforms out there are able to spend that kind of money? It’s not that many. There’s four or five, maybe. And even then, I’m not even sure, and that’s just for YouTube, that’s just for the video content, and cover some musical content, so video and audio content. And that’s also in the case, where all those copyright holders have agreed to hand over examples of their work. And so, you have other platforms like Instagram that you mentioned before, how do you handle that question on Instagram? What if you go to a museum and take a photograph of a painting that is covered by copyright, does Instagram have to be able to recognize that? How do you build a filter that recognizes that?
23:21 Michael Masnick: Is it fair use? How do you build a filter that determines what is fair use? The one that we have already in Content ID is notoriously bad at figuring out what is fair use. Smaller platforms are going to have even more trouble with it. And then, on top of that, you look at the number of stories out there of Content ID completely messing up [chuckle] and pulling down perfectly legitimate stuff. It happens all the time. We can certainly get reports and examples of it on an almost daily basis, and that’s the most expensive, most sophisticated such system on probably the easiest content to make those calls on, and it still pulls down all sorts of content, and blocks it.
24:10 Paul Matzko: I think my favorite example just out there unintended consequence, was there was a Family Guy episode in which they showed a clip from some Let’s Play YouTube user of an old 1980s video game or something, but then once Family Guy aired it, well now the company that owns, whatever the media conglomerate is behind Family Guy, it’s now covered under their copyright claim. They basically said, “Look, it was on the show, therefore, it’s part of the show, therefore you have to take down any use of it because it’s taking off the show without license.”
24:57 Paul Matzko: And under the US DMCA system, they made the original person who they were actually borrowing it from, take it off their YouTube channel who had put it up seven years prior to it showing up on the show. [chuckle] There’s this bizarre ouroboros devouring its own tail going on here, which is just… None of this was intended. In fact, no one even, a lot of the people involved, including the creator of Family Guy, was actually opposed to this, but once the machinery is in place, it’s hard to resist even, even when that’s not part of your intent.
25:32 Michael Masnick: Yeah, and I mean part of it is just the fact that… Copyright itself, and this is something that I think a lot of people don’t fully understand. Copyright is very, very context-specific. I mean the exact same piece of work in two different contexts. One could be infringing and one could be not infringing; it could be fair use, could be de minimis, could be parity, could be… There’s all sorts of reasons why the exact same use could be legit in one case and not the other, and that’s something that, as sophisticated as machine learning algorithms may be these days, they’re not so good at figuring out the context of these things, and that gets also really problematic when you’re dealing with the fact that these filtering decisions are going to be made pre-upload.
26:19 Michael Masnick: If the idea being, before you can even get them on the site, the filter is going to determine whether or not it can be published or not. And so we may not even know all sorts of stuff that is not allowed, and that’s where the fear or some people have been using the term censorship machines to describe the upload filters becomes a real problem. If you don’t even know if all these things are being blocked from being uploaded to the internet, entirely just because a machine has decided they must be infringing, even if they’re not. What recourse is there? And it’s not clear that there’s any for some people and that raises some serious concerns as well.
27:03 Will Duffield: So, no filtering apparatus or machine learning system is going to keep up with the speed of culture, the extent to which or rate at which images, video, sound is remixed and re-contextualized by masses of users spread out across the world. But it seems to me that underlying a lot of this debate is a lack of appreciation of scale. There’s simply so much of this content being uploaded every day, every hour, that in order… Even if you were to have a 99.7% effective filtering mechanism, which isn’t something you’re likely to approach any way, you’d still then, given the millions of pieces of content that are uploaded, be taking down tens, if not hundreds of thousands of pieces of legitimate content simply in that 0.3%. Do you see the EU legislators as aware of that scale issue or is it something else?
28:21 Michael Masnick: I think it’s very difficult for most people to comprehend that kind of scale. I mean I don’t think our brains are designed or evolved to comprehend that kind of scale. We’re used to dealing with a small group of people and small groups of things. The idea that I don’t even know what the most accurate numbers are these days now, but a 100 hours of video are uploaded every second on YouTube or whatever which is… I think that was the stat from five years ago, so I’m sure it’s much higher now. The idea that you can go through all of that in any reasonable way and not make mistakes.
29:05 Michael Masnick: It’s hard to comprehend and I think it’s a really, really difficult thing, even for people who sort of live in this space and follow this stuff. I don’t even know if I fully comprehend the size of the scale. And I’ve talked to people at these different companies, and you know… They are just trying to keep coming up with different ways to express it to you, [chuckle] where it’s just like, the idea that you have to make, on the order of five million decisions today, five and a half million decisions tomorrow, six million decisions the next day… You are making so many decisions so fast, it’s impossible to do that correctly. You are going to make mistakes. And when you make just even a tiny few mistakes on such a large scale then you’re creating so much collateral damage.
30:03 Michael Masnick: And we had a post recently which you may have been referring to there, where somebody had looked at the numbers, if you were to get that kind of quality, I think there were examples of 99% accurate and 98.5% accurate. And then you sort of estimate like how much of this stuff is being uploaded is infringing versus how much of it is not, you end up taking down a ridiculous amount of perfectly legitimate content, to really get at what is a relatively small problem. And that raises a whole other issue which is probably a whole other podcast discussion not worth going into, which is like, “How much of this is really a problem?” You have certain industries, the music, the recording industries, and the movie industries who continue to focus on this as a problem and yet, the evidence really suggests that this is not that big of a problem. Is there a lot of infringing content online? Absolutely. Are there a lot of people getting it for free? Absolutely. Is that a real problem for their business model? That’s a much bigger, bigger open question because what we’re seeing is that when you have good, effective licensed services that people like to use that offer a good experience, the rate of piracy or the rate of relying on these services drops.
31:26 Michael Masnick: And in fact, the people who use these services over and over again, there’s something like two dozen different studies showing this at this point. Those people intend to spend more money on the licensed services or on content or going out to see movies or on buying music or concerts or whatever. The question is, how much of a real problem is piracy on these platforms at this point? There’s a lot of content there, and that’s what everyone focuses on, but is it an actual problem for the industry, is a whole other question. And will filter somehow solve that? Will filter suddenly make people buy more than they were before? That does not seem to be all that well supported by the evidence either.
32:06 Paul Matzko: We had that debate a couple of years ago, here in the US. I was just thinking about it today… So it’s the idea that piracy’s a customer service problem, the debates over people torrenting large quantities of music and the pre-iTunes, pre-easy internet access to television, and video products, piracy was a huge problem. But then essentially once legacy TV, film, and music industries updated how they thought about how they made money off this process, the piracy problem became a tiny percentage of what it once was. I was thinking about this today, I wanted to watch an episode of the AMC show “Preacher,” and they have the first episode of the season for free. So you get a taste of it and then sure enough, went and bought the season. So I’m someone who… And that’s something that a lot of television and film opposed doing at first, the idea of a snippet or a sample. They didn’t wanna provide anything whatsoever for free, and then there wasn’t even a way to really legally buy online.
33:20 Paul Matzko: You had to go find, track down the DVD and wait a long period of time. But the model has shifted so it feels a bit like there is the wave, the crest of the digital revolution is hitting these legacy institutions and they’re desperately trying to paper over the cracks in the dike, rather than adapting their model to fit it. So it’s interesting to see that happening over in the European Union right now. Now, I saw from the coverage that this directive, the Copyright Directive was defeated in the EU Parliament on a pretty close vote, 318 to 278 a few days ago. So, make sure we pop a cork, sip some champagne, relax. Are we all good now? [chuckle]
34:06 Michael Masnick: No.
34:08 Paul Matzko: Oh man.
34:08 Michael Masnick: So no happy ending. So the issue wasn’t necessarily that it was rejected so much as… What the EU Parliament did was they agreed to actually open it up for possible amendments. I’m in no way an expert on EU regulatory process, so I’ve been learning some of this as we go as well, but more or less the EU Commission created the directive. It got buy-in from, I forget what it’s called, but there’s some sort of committee of the different member states of the EU and they bought into it. And then you had an EU Parliament, Legislative Affairs Committee, which is there’s an acronym JURI which I forget what it stands for. They then voted for it. And then normally what happens then is that’s sort of from there on, the EU Parliament would rubber stamp it. Instead, you had enough people in the EU Parliament say we should put this up to a full vote across the EU Parliament, as to whether or not it should be opened up for amendments. And so that was the big vote, and that’s the one that was narrowly approved which now effectively opens up the text so that anyone can amend it.
35:21 Michael Masnick: Now, it was a really close vote. And so there’s all sorts of questions about what are those amendments going to look like? They could fix the problems of Article 11 and Article 13, or they could make them worse [chuckle] or they could in the end, remain as they were. And so, there’s gonna be basically a big fight over the next couple of months and then there’ll be another vote in September on those amendments and then we’ll see where these things go.
35:49 Paul Matzko: It seemed like there was a lot of, there was more support from, I could tell, among the MEPs for… They were… Fewer of them were as concerned about the link tax or about Article 11 and the neighboring right as were concerned about all necessary measures, Article 13, the way some of the votes broke down. So it’s not hard to imagine given how close the vote was that an amended version that wasn’t quite as onerous, that took out 13 or watered it down a bit would have a serious shot at passage.
36:26 Michael Masnick: Yeah. And that doesn’t even get a… There are other articles [chuckle] in the directive that are potentially problematic, too, in terms of like… For search engines, for scraping data, there’s a text and data mining part of it that has some potential problems too. But there’s… [chuckle] They have so many things, so many fires you’re gonna fight at once… [laughter]
36:48 Paul Matzko: A luxury of problems. [chuckle]
36:50 Michael Masnick: Yeah. But you’re right that Article 13 is the one that… And to be clear, Article 13 is the one that is likely to have the most impact on general users of the internet, that would have the most impact on how the internet works and feels for everyday people. And so that would have the biggest impact. And so we see that in terms of the protests and the focus of the protests and in the way that MEPs are seeing it. So Article 13 is definitely seen as the biggest problem and Article 11 has gotten significant attention but less attention than Article 13. So it is entirely possible that some sort of compromise is worked out where Article 13 is removed or greatly watered down but Article 11 remains. And that to me would still be really problematic. But it’s possible we could see all different kinds of permutations on that.
37:40 Will Duffield: So this European proposal would certainly affect US internet users were it to be put in place. Do we see anything like it making its way to the US or through the US legislative system? We seem to have been hacking away at intermediary liability with FOSTA not too long ago. But are there any similar moves on the copyright front?
38:06 Michael Masnick: Yes and no. So intermediary liability which, for people who don’t know, is basically the question of if you’re running a platform on the internet, hence you are an intermediary. If somebody puts content that breaks some sort of law, who is responsible for it? Is it the person who created or placed that content or uploaded that content? Or is it the platform that is hosting that content? And generally speaking, we’ve always, for I think very good reasons, believed that it should be the liability and onus should be on the person who uploaded or created that content, rather than the platform that is hosting that content. It’s perhaps a more extreme version of saying, “We don’t blame AT&T when somebody makes a bomb threat using an AT&T phone.” Right? It seems to make sense to me. But that’s been under attack globally for a very long time. And so the SESTA/FOSTA debate was one example of that, conveniently using a sort of hot-button topic of sex trafficking in order to sort of drive a wedge into intermediary liability law in the US.
39:29 Paul Matzko: Make it seem like if you’re opposed to this legislation, you must approve of sex trafficking. Right? It’s the framing devices.
39:35 Michael Masnick: [chuckle] That is the accusations that have been made of course. Now since that law’s passed, we’ve since seen and I’ve written a couple articles now about how police departments, some of whom supported the passing of SESTA/FOSTA, are now reporting that it is harder, suddenly, magically harder for them to find victims of sex trafficking.
40:00 Paul Matzko: How could we have known?
40:01 Michael Masnick: Because these websites are going offline and they used to use them to track down these people.
40:05 Paul Matzko: Yeah. Yeah.
40:06 Michael Masnick: And so suddenly, there is just this report out of Indianapolis, about how they’re saying they just did their first arrest of someone in 2018. And they were saying, “Last year was so much easier. When we had Backpage to use to find all these people.” And it’s like, “You think? That’s what happens.” But there’s been this sort of coordinated attempt going back decades to sort of eat away at intermediary liability protections. And indeed, some of the same people who are working behind the scenes to get SESTA passed are the same people who are working behind the scenes specifically on Article 13 in the EU. And so I think there’s definitely a plan. And this is… This also may be a potential tangent, but you can go back basically 25 years now and find examples of how particular industries, especially in the copyright realm, really, really liked to use this international strategy where you go to one region or country and you get them to pass some crazy idea to expand or extend copyright protections in one way or another.
41:24 Michael Masnick: And then you work on some sort of international trade agreement to again harmonize [chuckle] between different countries. But it’s always harmonize in one way. Or even better, you build this sort of ratchet system in where you get one country to pass something horrible and then you tell some other country or region that they have to match. And you get them to actually do it, a little even beyond that. And you go back and forth and you keep getting people to push further and further. You get this sort of leap-frogging situation. And so there’s definitely some indication of that and there were a couple of sort of procedural moves with the EU Copyright Directive that certainly suggested or hinted at a plan to do something similar.
42:08 Michael Masnick: Get the EU Copyright Directive passed in there and then the different member states have to pass laws to apply it, and then pressure the US to harmonize through some sort of trade agreement. And so, yeah, I think there’s a real possibility that, that is the plan, that’s sort of the guiding strategy behind all this.
42:34 Paul Matzko: Well, it’s certainly something we need to keep on our radars, as folks interested in tech, both here in America, and we’ll keep an eye on what happens in September with the EU Parliament. Mike, thanks for coming on and talking about this issue with us. I don’t know how many folks who aren’t regularly reading Techdirt would have picked up on how significant this issue was, which is a reminder to all of our listeners, check out Techdirt. Find Techdirt’s podcast in the iTunes search engine, give it a listen. Thank you guys for coming on and until next week, be well.
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