Sensibly Speaking Podcast #166: Save Your Internet (Article 13 in the EU)

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Hey everyone, this week we are going to talk about the internet, the European Union and some panic that is setting in across the YouTube platform which is being stoked directly by the powers-that-be at YouTube, and possibly with good reason. This week, we are discussing the infamous Article 13.

So, what is this all about? Well, over in the European Union, they are voting on something called the EU Copyright Directive, of which Article 13 is a part, sometime in January of next year and we need to talk about it. So what is it?

Article 13 has to do with copyright law and I’m pretty sure that is one of the most tedious and boring subjects known to mankind. And I’m sorry to tell you this but copyright law has a direct effect on everything that you see and hear every single day. This is something that you might want to understand and pay attention to, especially since changes in copyright law might threaten not just this show and everyone else on YouTube, but it could even affect you and what you can and can’t upload to the internet. Like those cat memes? Like to use songs to make fun of stuff? Ever see critical, informative or satirical articles and memes that use imagery and sounds from copyrighted works? Well, those all could go away overnight if the current concept of Article 13 were to become law. But let’s not all start freaking out quite yet because negotiations are still in progress right now over what the final wording of the law is. And that is where you come in, especially for those of you who actually live in Europe and listen to this show.

There’s no way I’m going to be able to cover all the ins and outs of this in a short podcast. I don’t even understand them all myself, but I have done a bit of research instead of just flying off the handle and so I want to talk turkey about this without trying to create some kind of international panic. It’s doubtful that the politicians who make up the EU Parliament are going to pass into law something so drastic as to change everyone’s way of interacting on the internet just on a whim. And yet, politicians have been known to make some really catastrophic blunders, not because they were trying to mess things up but because they simply didn’t understand the unintended consequences of their actions. So let’s get into this.

First off, I have to give you guys a little history of the European Union itself since it’s the EU Parliament where this is happening. The EU and its government bodies are not the same as what is in the United States and unfortunately, most Americans don’t understand the first thing about it. Hell, most of us don’t even understand our own government structure and how it functions, so expecting us to grok the EU too is a tall order.

The European Union (EU) is a political and economic union of 28 member states that are located primarily in Europe and has an estimated population of about 513 million. A monetary union was established in 1999 and came into full force in 2002 and is composed of 19 EU member states which use the euro currency.

There’s a lot of history to Europe and I’m going to gloss over so much with this short summary, but here are the broad strokes: after the fall of Rome in 476, various European nations rose and fell, trying to take the place of a single ruling system overseeing Europe like the old ancient Roman empire had. They succeeded and failed in turns, eventually leading to the aggressions of World War I and II after which the various nation-states making up Europe decided that a new model of pan-national cooperation was finally necessary. This was actually inspired by the French and American Revolutions after the demise of the Napoleon Empire but it took another century before these cooperative efforts started seeing fruit.

After World War II, European integration was seen as an antidote to the extreme nationalism which had devastated the continent. In 1952, disappointed with the lack of progress within the fledging Council of Europe, six nations created the European Coal and Steel Community, which was declared to be “a first step in the federation of Europe”. Why were coal and steel so important? Well, consider this: Italy, France and Belgium understood that coal and steel were the two industries essential for waging war, and that by tying their national industries together, future war between their nations was made impossible. That is the importance of trade and mutual cooperation between countries and one reason why foreign relations and trade policies are so closely linked. This is also why tariffs, embargoes and sanctions can be so devastating to countries and are used as tools of influence between nations instead of just going into outright war.

The European Union was formally established with the Maastricht Treaty on November 1, 1993. In 1995, Austria, Finland, and Sweden joined the EU. In 2002, euro banknotes and coins replaced national currencies in 12 of the member states. Since then, many more countries joined the EU and converted to the euro as well.

From the beginning of the 2010s, the cohesion of the European Union has been tested by several issues, including a debt crisis in some of the Eurozone countries, increasing migration from the Middle East and Africa, and the United Kingdom’s withdrawal from the EU. If you have heard of Brexit and wondered what that was all about, it was a referendum in the UK to formally leave the EU as a member state and that will take place on March 29, 2019. There are furious negotiations happening now to try to soften the blow of leaving since that is going to impact a lot of British citizens in ways I don’t think they really thought too much about when they voted to leave the EU. Leaving is going to create all kinds of problems with their travel to and from Europe, education opportunities and of course, free trade. There are people in the UK right now who are bracing for the worst because if these negotiations are not finalized by Brexit day next March, hospitals might not have the medicines they need, food could run scarce and a lot of other messes could crop up which no one really thought much about. Anyway, that’s the UK’s problem but it’s a big one.

Now in terms of structure, the EU is made up of a number of decision-making bodies. There are seven of these but we’re only going to mention three of them. The European Parliament is the directly elected parliamentary institution of the European Union and together with the Council of the European Union and the European Commission, they make laws in a similar way to how the United States Congress does for the US. The Parliament is composed of 751 members. By the way, they represent the largest trans-national democratic electorate in the world with 375 million eligible voters in 2009. The Census Bureau says that the United States has 245 million people of voting age as of 2016 with only about 56% of those voters actually turning out and casting ballots. So the EU is a bigger piece of the world pie than the United States and we here often tend to devalue or even ignore Europe when we should be paying a lot more attention to what goes on there.

Something else I’ll also quickly comment on is the difference between US and European copyright laws. This is so complicated and mired in so much minutiae it would be crazy for me to even try to get into all the specifics of it because frankly it’s not easy to understand at all and Europe itself has been trying to streamline the rules across its member states for the last 25 years with only a modicum of success. Each member state has different laws about when copyrights end and the works go into the public domain, for example, so it’s not a simple matter of an author retaining copyright during his or her lifetime plus the standard 70 years dictated by current law. There are all kinds of exceptions to that 70 years, such as a transitional rule in Dutch copyright law which states that works posthumously published before 1995 will retain copyright. This affected the release of the diary of Anne Frank, which appeared it would enter the public domain in 2016 but large parts of which will only expire in 2037.

The rise of the internet and the popularity of memes and other imagery as well as videos and writings which sometimes sample copyrighted works has made all of this orders of magnitude more complicated. File sharing and meme sharing and every other kind of sharing has made a regulatory nightmare for internet platforms and lawmakers around the world. Frankly, Europe values the rights of individual copyright holders more than the United States does, where emphasis is placed way more on corporate rights and activities. This is one of the reasons that the EU felt the need to step in with this Directive, because Google, including YouTube, as well as Apple and other mega-corporations have been fined literally billions of dollars in EU over some of these legal issues and yet these big companies continue to treat Europe as though it’s laws don’t matter. This sort of war has been going on for a while and this EU Copyright Directive is actually just one skirmish in a much bigger and broader fight. But since it turns out this might have some very serious unintended consequences, we have to talk about this now.

So what is Article 13 about? It’s one part of legislation called the “Directive on Copyright in the Digital Single Market,” colloquially known as the EU Copyright Directive. According to Vox media writer Julia Alexander, this seeks to:

“…instill an aggressive protection for rights holders by making the platforms hosting user content – like YouTube – liable for copyright infringement.

“User content will run through even more aggressive filters than YouTube’s current Content ID system, forcing platforms like YouTube to ‘take measures to ensure the functioning of agreements concluded with rights-holders for the use of their works,’ according to the proposed directive.

“If passed, the individual countries that belong to the European Union would turn the directive into laws — but no two countries’ laws would necessarily be the same, making adhering to the ruling more complicated. Those laws would also affect content owned by European license holders that circulate around the globe (e.g. anything owned by the BBC). Everything becomes increasingly more complicated when American laws — specifically those that allow companies like YouTube to operate under somewhat safe harbors — are brought into play.”

Here’s some more on this from Express, a UK online news source:

“Before now any claims on copyright lay with the copyright holders – i.e. companies who produced audio, video or written content – to themselves enforce copyright protection.

“In simple terms, the Directive on Copyright shifts the responsibility of copyright protection onto the sites themselves.

“Article 13 would mean that online platforms have to filter or take down copyrighted material from their websites.

“The article states that ‘online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services.’

“Some are worried that this means saying goodbye to much loved and shared creations like memes, however, this might not be the case.

“Memes, for the most part, will be protected as parodies, and therefore won’t be removed.

“However, opposers argue that filters may not classify some memes as parodies, meaning they will be removed regardless.

“Should the directive pass, the EU member states will have two years to introduce their laws in line with EU regulations.”

Now as a YouTube content creator, I upload content to YouTube three times a week and have been doing that for a couple of years now. During the beginning of the YouTube Ad-pocalypse that some of you might remember me talking about, YouTube put algorithms in place to catch videos which violated their advertising standards. Do you want to know how bad those algorithms were? Really bad. I was getting every one of my videos flagged for a period of time and I had to ask for manual reviews every time I uploaded. Eventually they stopped automatically flagging my videos just because I was talking about Scientology in some of them, which I believe they had somehow incorrectly marked as anti-religious hate speech. Anyone who watches my channel knows that is simply not the case and after manual reviews by a human being at YouTube, my videos would be okayed for advertising again. Yet this still happens because of YouTube’s cryptic and bizarre advertising standards. Two of the videos I’ve uploaded in the last month were flagged and it took repeated efforts on my part to get one of them okayed. But if you want to have a talk or educate people on the internet about the problems with Islamic fundamentalism or domestic terrorism here in the United States, you’ll be doing it for free here on YouTube because anything that even appears to mention any of that will be flagged no matter what the actual content of the video is. They also seem to have a real hard-on to demonetize anything that mentions atheism, which I find incredibly weird. That is how YouTube deals with advertisement filtering. As a content creator, I can tell you that it sucks.

So then I imagine what it would look like if YouTube’s algorithms were expanded to then start looking for any instances of copyright violations and I think it would end up just flagging each and every video anyone uploaded. I mean, what if you have a movie poster or some other copyrighted image in the background of your video? What if you are outside and you walk by a theater or a concert hall and there are copyrighted works on display behind you? What if you stop and talk about that for a second? Would that be a copyright violation?

Education, criticism and satire are three of the most popular and widespread uses of the internet. This is where the memes come in to play, as well as almost all of the video content I produce. I frequently quote from the works of L. Ron Hubbard and many other authors and that is covered right now under Fair Use law as valid since I am offering constructive critiques of those works. How would a robo-filter interpret my work? Well, based on my experience with YouTube so far, it would be a complete disaster. I wouldn’t be able to upload much of any content at all. It’s no exaggeration for me to say that the same would apply to almost all other commentators and creators on YouTube.

Julia Reda is a Member of the European Parliament from the Pirate Party of Germany. Yes, there really is a political group called the Pirate Party and she’s been one of the most outspoken critics of Article 13 and it’s potentially unintended consequences. She explained to Wired magazine why Article 13 could kill the internet by mistake. She said:

“…in early 2001, there were no services like YouTube and SoundCloud, allowing anyone to publish their works worldwide for free. People were not yet carrying around recording devices with high-quality cameras and microphones – smartphones – everywhere they went. Apps like Musical.ly, making creation effortless, weren’t around. Derivative works like lipsyncs, mashups, and reaction GIFs weren’t everyday parts of our culture. Streaming services like Spotify were yet to be invented, as were platforms allowing artists to directly accept support from their fans, like Patreon and Bandcamp.

“Tragically, none of these developments are reflected in the planned new Directive, as adopted by the European Parliament last week [this was written last June]. It does not recognise and legitimise the new stakeholders, the masses of new creators. It does not nurture and protect our new forms of expression, many of which build on existing works in ways that are only partly covered by today’s copyright exceptions. It doesn’t unify what’s allowed and what isn’t in different EU member states, even though we all use the same internet to share and access works.

“Instead, lawmakers looked at copyright primarily through one very particular lens: that of big media companies, with their waning control over distribution channels. On the internet, text, music and video content is never scarce – there’s no end to the opinions we can read, the selection of records in stock, or our choice of TV stations. As a consequence, some of the power and profit has shifted from record labels and publishing houses to internet platforms – from middlemen who produce and distribute works, charging per copy, to middlemen who make works available and discoverable, indirectly profiting by selling users’ attention to advertisers.

“It’s hard to judge whether this change is overall more of a challenge or an opportunity for artists. There are many examples of creators leveraging the new media landscape for their benefit in ways that had never been possible before. The established industries and traditional gatekeepers, however, are up in arms.

“Investing the considerable political capital they still hold, they convinced lawmakers to try to undo that fundamental shift and find ways to redistribute income back to them. The copyright reform project was a convenient vehicle to that end.

“That is the real goal behind the most controversial parts of the EU Copyright Directive. Articles 11 and 13 – a so-called “link tax” for news content, and a rule making internet platforms liable for copyright infringements by their users – were never meant to be carefully considered fixes to issues in copyright law. They are meant to be sticks EU-based publishing and music giants can wield to force US-based internet platform giants to the negotiation table on their terms. To achieve that, some kind of license needs to be required, and the media industry needs to get to set the price.

“The supporters of these provisions don’t particularly care about the specific nature of the sticks they’re handing out. Many are out of their depth when it comes to discussing the details. The intended effect of the law is not so much what its paragraphs say, but to placate the media industry – and thereby, taking their word for it, ‘saving creativity and the independent press in Europe’.

“That explains why the Directive’s supporters so easily dismiss warnings of censorship infrastructure and restrictions on our freedom to link. Since they don’t consciously intend to cause these effects, it must just be hyperbole. And since their politics are driven by supporting one particular oligopoly over another, it’s natural for them to assume the ‘other side’ must be similarly motivated. Any opposition is dismissed as a Google-orchestrated campaign – an absurd belief, but like most conspiracy theories, highly effective at shutting down factual debate.

“The supporters of Articles 11 and 13 believe they are merely regulating a struggle between powerful industries. But legal and technical experts examining the actual provisions, and forecasting their consequences, are near-unanimously sounding the alarm: by interfering with the basic dynamics of the internet, what they are regulating is our freedom of expression. Those sticks turn out to be swords hanging over all of us.”

As to the feedback of these legal and technical experts, let me tell you about this because this more than anything convinced me that something dangerous is afoot here. This is a letter that was signed by the people who literally created the internet. I’m not even joking. It was sent on June 12 of this year to the President of the European Parliament and among other things, it said:

“As a group of the Internet’s original architects and pioneers and their successors, we write to you as a matter of urgency about an imminent threat to the future of this global network.

“The European Commission’s proposal for Article 13 of the proposed Directive for Copyright in the Digital Single Market Directive was well-intended. As creators ourselves, we share the concern that there should be a fair distribution of revenues from the online use of copyright works, that benefits creators, publishers, and platforms alike.

“But Article 13 is not the right way to achieve this. By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.

“Europe has been served well by the balanced liability model established under the Ecommerce Directive, under which those who upload content to the Internet bear the principal responsibility for its legality, while platforms are responsible to take action to remove such content once its illegality has been brought to their attention. By inverting this liability model and essentially making platforms directly responsible for ensuring the legality of content in the first instance, the business models and investments of platforms large and small will be impacted. The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.”

“We support the consideration of measures that would improve the ability for creators to receive fair remuneration for the use of their works online. But we cannot support Article 13, which would mandate Internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks. For the sake of the Internet’s future, we urge you to vote for the deletion of this proposal.”

This letter was signed by people like Tim Berners-Lee, the inventor of the World Wide Web (no, it wasn’t Al Gore); Brewster Kahle, Founder of the Internet Archive; Brian Behlendorf, primary developer of the Apache Web server; Guido van Rossum, founder and developer of the Python programming language; Jimmy Wales, co-founder of Wikipedia; Joichi Ito, Director of the MIT Media Lab; John Gilmore, co-founder of the Electronic Frontier Foundation; and Mitchell Baker, chairwoman of the Mozilla Foundation as well as many others heavy duty creators and influencers. When it comes to the internet, these are people you want to listen to.

So when these authority figures are putting their weight behind stopping Article 13, I do listen and I am sharing that information with you now.

For those of us in the US, we don’t have direct lines of influence with EU Parliamentary members but we can still push the message on social media lines and talk to anyone we do know in Europe about this. For those of you watching or listening to this podcast in Europe, please contact your Member of the European Parliament and urge them to get educated on this and to take action to ensure this EU Copyright Directive doesn’t throw the baby out with the bathwater. We want a free and unencumbered internet which operates on its original founding principles. Most of you probably didn’t know or don’t remember what those principles were, but big among them was the concept of a space for the free sharing of information without authoritarian restrictions.

While regulations are necessary to curb abuses, they can also stop free speech and that means censorship and a whole host of disastrous problems. It is because we have the ability to upload literally anything for public sharing and viewing that we can stop oppressive governments from being oppressive and we can even coordinate revolutionary activity over the net. We have grown so used to that, we forget the power we have and how easy it is for it to be taken away in the blink of an eye. The internet will only be as free as we fight for it to be. If we roll our eyes and think this is someone else’s problem and has nothing to do with us, we are basically handing over our power to someone else.

Most people out there, including even those in power, don’t want to destroy the freedoms we have. Hell, the intention behind this EU Copyright Directive is a good one: to protect creators and their works. There’s nothing wrong with that intention but there is everything wrong with putting the burden of that copyright protection on the internet platforms themselves. They are not technically capable of doing it, so instead they will either kick us individual creators off YouTube entirely rather than spend the money and time necessary to comply with these directives. The CEO of YouTube has already stated in an open video to all YouTube creators that could be an outcome of this legislation. She may be using fearmongering and exaggeration to just scare the crap out of us YouTubers so we will push back on Article 13. Then again, maybe she’s forecasting what direction YouTube will have to go if Article 13 goes through as it’s currently worded.

I, for one, would not like to see that come to pass. I like having this channel and I like doing this work. I think you like me doing it too because most of you keep coming around to hear what I have to say. So let’s do some simple actions now to keep these freedoms we have, like reaching out to these law makers in Europe and letting them know we are watching this very closely and they better do the right thing for all of us little people. The mega-corporations can wage their copyright war on some other front and sort out their problems without having to lay waste to the internet in the process.

Links:

Express article

Wired UK article

Why it will kill the internet article

The post Sensibly Speaking Podcast #166: Save Your Internet (Article 13 in the EU) appeared first on The Sensibly Speaking Podcast.

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