Forget The GDPR, The EU's New Copyright Proposal Will Be A Complete And Utter Disaster For The Internet

[Wilhelm]

Today is GDPR day, and lots of people are waking up to a world in which EU regulations are having a widespread (and not always positive) impact on how the internet works. As we've detailed over the past couple of years, while there are many good ideas in the GDPR, there are also many ridiculously bad ones, combined with poorly thought out drafting, and we're already seeing some of the fallout from that. But, believe it or not, there's an even larger threat from the EU looming, and it's received precious little attention: the EU's new copyright reform proposal is set to be voted on next month and it will truly be disastrous to the internet. As it currently stands, it will require widespread censorship in the form of mandatory filtering and also link taxes that have already been shown to be harmful to news.

European Parliament member Julia Reda is sounding the alarm and asking people to speak out. As she notes, many of the folks now freaking out about the GDPR wish they got involved over two years ago when it was being debated. And if you're concerned about how problematic this new copyright reform will be for the internet, now is the time to speak out (yes, even if you're not in the EU):

On the topic of copyright, you NOW have the chance to have an influence – a chance that will be long lost in two years, when we’ll all be “suddenly” faced with the challenge of having to implement upload filters and the “link tax” – or running into new limits on what we can do using the web services we rely on.

In stark contrast to the GDPR, experts near-unanimously agree that the copyright reform law, as it stands now, is really bad. Where in the case of the GDPR the EU institutions pushed through many changes against the concerted lobbying efforts of big business interests, in the copyright reform they are about to give them exactly what they want.

Parliament and Council have had over a year and a half to fix the glaring flaws of the Commission proposal – but despite their growing complexity, the latest drafts of both institutions fail to meet basic standards of workability and proportionality

Reda's post goes on to detail the many, many problems of the current copyright proposal -- in which merely linking to a news site may require paying money (link tax) and where concerns about how that might negatively impact the entire internet are being woefully ignored. Perhaps even worse is the mandatory filtering idea. The big record labels and movie studios have, of course, been pushing for this kind of thing for years to get back at Google (mainly) and Facebook (a little bit). But, here's the thing: both Google and Facebook already have those filters (and spent tens of millions of dollars on them). This kind of law fucks over everyone else.

And, it's actually even worse than a mandatory filtering rule -- because the EU realized that such a rule would violate other EU laws. So, instead, it decided to hack away at intermediary liability protections to make mandatory filtering necessary:

Make platforms directly liable for all copyright infringements by their users, and then offer that they can avoid that unreasonable liability if they can show they’ve done everything in their power to prevent copyrighted content from appearing online – namely, by deploying upload filters (Article 13, paragraph 4). Which remain totally optional, of course! Wink, wink, nudge, nudge.

Tragically, the only remaining point of disagreement in Council is whether this proposal is bad enough, or should be made worse.

We've already spent years explaining how this will lead to widespread censorship online, but it will also be a disaster for basically all of the non-Google/Facebook platforms out there. Mid-size companies like Github have already talked about how this could effectively destroy its ability to operate, and lots of other sites would be impacted as well. Any kind of forum site would be at serious risk. Reddit, Pinterest, Twitch, Imgur, Wordpress, Medium, Vimeo. This would create massive liability for all of those sites, making it nearly impossible for many of them to function in the EU.

Reda notes that a new draft could make this situation even worse in noting that even having filters won't be enough to avoid liability:

Mr Voss’ latest draft expands the scope of the censorship machines proposal to all web platforms (a) whose purpose is to “give access to copyrighted content uploaded by users” and which (b) “optimise” that content. What counts as optimising? Among a long list of actions, we find that “displaying” the uploads already makes platforms legally liable for any copyright infringement they may include (Recital 37a).

And in his version, web services can’t even avoid liability by implementing upload filters. To protect themselves from being sued, they would need to get licenses from all rightsholders that exist on the planet before allowing user uploads to go online, just in case the upload may contain (parts of) any of their works.

He also claims that checking every new user upload for whether it includes one of hundreds or thousands of specific copyrighted works somehow does not constitute “general monitoring” (Recital 39), which would be forbidden – now that’s some wishful lawmaking.

As Reda also points out, most of the EU member states appear to be supportive of these horrible ideas (or even pushing to make it worse). What now stands between this horrible law making a mess of the internet is just the EU Parliament which is currently scheduled to vote on this in late June (probably the 20th or 21st). If you are in the EU now is absolutely the time to speak up. If you're outside the EU, it also would help to speak up and let the EU Parliament know that this is a horrible idea that will have significant problems for the wider internet, free speech and innovation.