When copyright goes wrong

What is the justification for the claim that “What is being proposed here is an automated filter” (since no such filter is explicitly mentioned)? Why, for example, does a mechanism that allows rights holder to notify and for a site to then take down content fail to meet the standard of necessity and proportionality?

First, my “cred” as a creator: https://www.broadheath.com

All of my work is effectively in the public domain; I assert what used to be called “common-law” copyright, but for all I know, that is no longer even a thing. The only thing that I am concerned to prevent is altered versions of my work being labelled as mine; but there is no effective way to do that, within (or outside of) today’s (or any previous) copyright law.

That said, “intellectual property” is a non-concept. If I drop a non-identifiable physical object on the sidewalk, I no longer possess it. If someone picks it up, it becomes their property. If I drop an idea on the sidwalk, and someone comes along and picks it up, it is still there, and any number of additional people can come along and pick it up.

“Intellectual property” is a euphemism for censorship, full stop. It has no other purpose.

If the concept of “intellectual property” cannot be abolished altogether, then there are two necessary and sufficient reforms of copyright: (1) prohibit assignment of copyright, so that the false distinction between creators and rightsholders cannot arise; (2) works that cease to be effectively exploited thereupon fall into the public domain.

It might be useful to review Ursula K. LeGuin’s analysis of “snippets” including both the lack of international definition of same and Google’s proposal for obtaining and using them.

Cory, but what I asked was “Why, for example, does a mechanism that allows rights holder to notify and for a site to then take down content fail to meet the standard of necessity and proportionality?” I don’t think that question is answered by telling me what lobbyists have been saying. (On your account they have been saying both that it is and that it isn’t about filters.) The question is rather about what a court would find.

Chris, CP,
Until now under the Ecommerce directive the EU has had a similar notice and takedown approach to the US DMCA measures. Arguably that constitutes “a mechanism that allows rights holder to notify and for a site to then take down content” that meets “the standard of necessity and proportionality?” Though some would disagree. Article 13 fundamentally changes the dynamic to one of pre-emptive automated takedowns. Software filters are not suitable copyright policing.
The text of article 13 approved by the JURI committee is now available.
It states:
“1. Online content sharing service
providers referred to in paragraph -1 shall,
in cooperation with rightholders, take
appropriate and proportionate measures to
ensure the functioning of licensing
agreements where concluded with
rightholders for the use of their works or
other subject-matter on those services.
In the absence of licensing agreements with
rightholders online content sharing service
providers shall take, in cooperation with
rightholders, appropriate and proportionate
measures leading to the non-availability on
those services of works or other subject
matter infringing copyright or relatedrights,
while non-infringing works and
other subject matter shall remain available.
1a. Member States shall ensure that the
online content sharing service providers
referred to in paragraph -1 shall apply the
measures referred to in paragraph 1 based
on the relevant information provided by
rightholders.
The online content sharing service
providers shall be transparent towards
rightholders and shall inform rightholders
of the measures employed, their
implementation, as well as when relevant,
shall periodically report on the use of the
works and other subject-matter.”
It is clear that “measures leading to the non-availability on those services of works or other subject matter infringing copyright or related rights” constitute an upload filter.
Thanks Cory for addressing the implications of the upload filter so clearly.
I won’t repeat what you’ve already noted much better than I could.
The EU parliament will holding a vote on this text later today.

Neville,
Not pedantry at all – thanks for raising this. The “unjustified” was directed at articles 11 and 13 being unnecessary and unjustified and thereby causing unhappiness. With hindsight I agree it would have been clearer if I’d said “justified unhappiness”.

Cranky Observer,
Ursula K. Le Guin’s analysis of snippets in the context of the Google Unfacts Concerning the Google (Un)Settlement book settlement
Part 2 is indeed worth reading. (Available at http://www.ursulakleguin.com/Blog2011.html) Snippet:
“Unfact: “Fair Use” is a clearly defined and clearly understood concept, which Google has observed scrupulously in its digitalization project, by delivering only “snippets” not full texts of copyrighted material.
Fact: It is even harder to determine precisely what Fair Use is than to determine than what “snippets” are.
Some useful definitions of Fair Use:
The primary definition, obviously, is the one supplied by the United States Copyright Office, copied below.[ii]
If you Google “Fair Use Definition,” Barron’s Law Dictionary has a useful discussion, and Wikipedia a long and interesting article.”

Frank,
It sounds as though tend toward the Richard Stallman end of the spectrum on views relating to intellectual property.

I have read and understood the new proposal, and I’m all for it.

You can still do whatever you want: make dancing baby video’s with music made by others, add memes to pictures taken by others, copy texts from others and modify them. Your creativity isn’t hampered in any way. You can show it to friends and family, print it and put it up on the livingroom wall. You are still free to be creative! Except: you cannot share your stuff with the world unless you pay the people who’s work you used. And that’s how it should be. Want to post it on the internet: fine, make everything yourself!

Imagine a YouTube with nothing but original content, memes with original pictures, dancing baby’s on home-written songs. A new and better world.

So yes, I hope this new law get’s approved. And that the EU countries adopt it as quickly as possible. Welcome new and creative internet.

Dax, the same problem Boing Boing would have under Article 13 applies equally to Crooked Timber. Paying a lawyer to evaluate your comment before it could be published would cost EUR200 or so. If you won’t say that the Europeans who post on my site deserve to be allowed to express themselves, will you declare for your own right to speak here?

Update: The EU parliament, today, has essentially rejected the proposed JURI (Legal Affairs) Committee text for the copyright directive. The vote was 318 against to 278 in favour, with 31 abstentions. The Parliament’s position will now be up for debate, amendment and another vote in September.

Right, the difficulty of talking about politics in a fact free way would be magnified if quoting facts were made problematic.

The problem would be that while technically quoting in a political debate would USUALLY be fair use, the platform would now have to prescreen it for fair use rather than post screen it for fair use. The current system is that they must respond to take down notices. The failure mode there is that bad actors can spam the system with dubious claims.

The proposed system is like institutionalzing the failure mode—treating every platform as if they are already getting spammed with take down notices and then forcing them to authorize each post (with legal liability attaching on authorization).

This is the first time I’ve seen a significant online campaign of “please contact your MEPs”. It’s a nice antidote to the usual perceived “democratic deficit” in Brussels.

Chris, that describes CT’s hosting provider.

@CB 20

It’s remarkably difficult to work out what the text of the proposal actually is. According to Julia Reda, at some recent point it was the following:

‘Online content sharing service’ means a [web] service one of the main purposes of which is to store and give access to the public to copyright protected works uploaded by its users, which the service optimises.

Although a baffling European Parliament website has this as an amendment, whatever that means:

(4b) ‘online content sharing service provider’ means a provider of an information society service one of the main purposes of which is to store and give access to the public to copyright protected works or other protected subject-matter uploaded by its users, which the service optimises. Services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all rightholders concerned, such as educational or scientific repositories, should not be considered online content sharing service providers within the meaning of this Directive. Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this Directive;

I don’t know the details of how Crooked Timber operates, but it seems conceivable that it would be caught by the first version and possible (perhaps depending on whatever the nonsensical “a non-commercial purpose capacity such as online encyclopaedia” exception is supposed to mean) that it might be caught by the second; the protected material uploaded by users would be, potentially, both posts and comments, which do from time to time include things like quotes or “snippets” of material from elsewhere (such as things that would be covered by the new publisher’s right in Article 11).

The specific exception for “providers of online services where the content is uploaded with the authorisation of all rightholders concerned” suggests that even if material posted by users to a site without rights-holder authorisation would generally be able to rely on an exception to copyright, like criticism or quotation, the site might still be covered.

Even if CT isn’t caught directly, its hosting provider might be covered and, if so, would need to find a way to pass the expense or risk of compliance on to its clients. All of this would depend on details of national implementation, of course.

CT is in a pretty unusual position, though, and the proposal poses more serious problems for slightly larger sites that accept larger amounts of user comments and display advertising, or are commercial in some other way. I’m thinking of sites like Boing Boing (as Cory Doctorow has pointed out) or Metafilter here. These kinds of sites appear to be clearly covered, and Article 13 would probably make them non-viable.

I think Chris Bertram’s argument here is more than a little disingenuous. If the only appropriate and proportionate measures conceivable with present technology are upload filters governed by AI-driven pattern-recognition algorithms, which appears to be the case, then it doesn’t take a degree in computer science (hah!) to imagine the chaos that will result.

I like Sascha Lobo’s take on this sort of argument in Der Spiegel: denying that copyright identification software of some conveniently unspecified type is in fact an upload filter is a bit like insisting that we call atom bombs disposable reactors. Of course this is precisely the sort of dictionary-finagling that tickles politicians in places like Brussels, so for them it’s apparently fingers in our ears and on we go….

Also – it’s not at all clear to me that an “online content sharing service provider” would have the option of either manually pre-screening user submissions for infringement (as Cory Doctorow mentions), or making it very clear to users that they shouldn’t post infringing material and accepting the risk of being sued if they do.

The very specific wording of the exceptions in the “amendment” strongly suggests that only very narrow categories of sites are intended to be excluded, and that even sites that genuinely have no intention of hosting infringing material (such as most text-based sites that have comments sections) are intended to be caught.

But I don’t think that upload filters are meant to be the first option for sites like these. It’s pretty clear from Article 13 that they are expected to pay for collective licenses which cover the mere possibility of hosting infringing material, with the threat of being forced to apply an upload filter driving them to negotiate with the collecting bodies from a position of weakness.

I think Chris Bertram’s argument here is more than a little disingenuous.

I haven’t put an argument, disingenuous or otherwise. I’ve asked questions and I’ve challenged what strike me as problematic claims. It may be that Ray and Cory and Julia Reda are entirely correct in their assessment (including, crucially, that web host providers would be caught). But I’ve been through enough panics of the form “insane new EU law/new-trade-treaty etc threatens world-as-we-know it” to wonder whether this isn’t another instance of the genre. Key issue (it seems to me) is how actual courts would interpret any provisions and how they would do so in ways consistent with other commitments, principles, treaties, conventions etc. Often we don’t get an accurate answer to that question from activists who freak out at their own reading of a text.

Often we don’t get an accurate answer to that question from activists who freak out at their own reading of a text.

I stand corrected on the point that you haven’t made an argument per se in the OP. I was in fact reacting more to your replies to Cory Doctorow in the comments. The fact of the matter is that Internet activists, Cory Doctorow among them, have consistently been more accurate in their predictions than the defenders of the technocratic processes of either the EU or US governments.

Corporations, for what to them have probably seemed to be valid reasons, have done their damndest to turn the Internet into network television. Stable and eternal monetization of their services appears to be their only real goal, and government bureaucracies charged with regulating them don’t seem willing or able to view the issues at stake through any lens other than that handed to them by ever-so-obliging corporate lobbyists. The main difference between the EU and the US government’s approach to copyright legislation at present is that the EU openly favors the publishers’ lobby, while the US favors the media/Internet service providers’ lobby. These latter two, I should note, were until very recently separate lobbies, until their principals decided in the interest of market relevance to bind themselves to one other before the sacred altar of neoliberalism.

As for freaking out, how do you personally feel about owning nothing and being forced to rent everything in perpetuum, including not just Mickey Mouse, but anything anyone has ever said or done, not to mention every necessity of life, including air and water. (A fanciful digression, maybe, but I’m thinking of the privatization of water facilities in Latin America and elsewhere, and the rental of apartment air purifiers in places like Beijing and New Delhi.) In a not so improbable future, if you can’t pay the vig, you won’t be considered worthy of living. How this will square with disappearing jobs is anybody’s guess at this point. Soylent Green?

Kevin,

Thanks for contributing to the discussion.

The “value gap” is a rhetorical invention of a particular set of economic actors interested in acquiring a larger slice of the revenues currently flowing to another set of economic actors, the big businesses with the leverage (e.g. Facebook, Google and Google’s YouTube).

It is worth pointing out that consumer value or even value to other commercial entities is not the same as rightsholder losses.

Getting back to the rhetoric of the debate, however, the use of metaphors like “link tax” is to be denied to those with a different perspective to those economic actors postulating a “value gap”? As a charge imposed by law, even if the revenues flow to licensors rather than government, I considered “link tax” a reasonable analogy being used by those opposing Article 11. The “monopoly rent for copyright industries” phrase you object to was mine. Copyright is a legally enforced monopoly, so the offending phrase may be a platitude but it is, nonetheless, accurate.

Empirical evidence on “the actual lived experience of working musicians” and other creators informing copyright policy would be a welcome development. Finding a way of doing digital business that is sustainable is a laudable aim and one I suspect is shared by a lot of the opposing protagonists in the public debate. Unfortunately those shared interests are often lost in the prevailing politics.

What particular collection, interaction and mix of stakeholders and economic actors get to do digital business that is sustainable and how is a vastly more complex challenge. Typically the largest commercial entities take the biggest slice of the available pie. As you rightly say, these big businesses have all the leverage. This is particularly problematic given the network effects of the tech industry. Google and Facebook are an order of magnitude more difficult a phenomenon to regulate, in multiple contexts, not just the copyright arena, than the monopolies of the past.

The ad hominem & straw man attack on Cory Doctorow was unnecessary. Cory is an actual creator who lives “the actual lived experience of” a prolific and immensely talented working writer. I’d really recommend reading what he actually has to say and engaging with it rather than dismissing him and “that crowd”.

You ask a selection of really interesting questions about YouTube. We should indeed be seeking answers to these and many related questions; not just of YouTube but of its commercial parent, Google, of Facebook, of Apple, Microsoft and Amazon and of the invisible adtech industry and the architecture they operate directing vast revenues, with limited checks and balances, across the giant networked system we call the internet. A more transparent and fairer distribution of those revenues, particularly to original creators/musicians/authors, would be a goal many of copyright’s stakholders could sign up to. Copyright should be concerned with encouraging creativity and sharing its benefits. We can, possibly, agree that these activities are critical to both an economy’s economic success and the wellbeing of its citizens?

Two things to round off, then.

Firstly I agree with your general implicit point that we should be developing copyright policy based on real empirical evidence, a critical part of this being the lived experience of creators you describe. We should therefore be putting a great deal more resources into initiatives like the CREATe research consortium which seeks to do precisely that.

Secondly, a small anecdote on filters. Whilst typing this I thought of a blog piece I wrote which I tried to consult. Firefox blocked me. From my own writing.

@Kevin

You argue for musicians to be protected for copyright infringement from consumers, what about copyright infringement from other musicians?

To me, a music consumer, I fail to hear any new “invention” from the pop music industry for more than a decade. A lot of new songs have phrases (melodies or lyrics) of them, as exactly the same as phrases of a lot of old songs. To be more extreme, the genre punk rock often has a whole part of the song (chorus or verse) exactly the same as other songs from the same genre e.g. some of the Blink182 and Good Charlotte songs during chorus without the lyrics are almost indistinguishable. I won’t be surprised if a lot of modern song’s melody phrases are exactly the same as melody phrases from classical music from that of Beethoven or Mozart.

In short? To me, modern musicians lives on the forgiveness of a lot of past musicians who’s IP have been infringed and will continue to be infringed in the future. Has anything been done to address this?

Ray,
Maybe thinking about the value gap in terms of monopsony would be helpful. Google, like every other licensed digital music service, must pay for the music. They pay less than everyone else because of a combination of oversized market power and the fact that creators have no real control about whether their work appears on the service. We are ultimately forced to choose between their sub-market terms or no compensation at all. Additionally, the widespread presence of unlicensed material on YouTube prevents the natural market emergence of competitive services that better sustain diverse musicians and fan communities.

The connection between filtering technology and the value gap is that a more competitive marketplace would be possible if YouTube used the technology it has implemented right now, but divorced this filtering technology from its licensing deals, rather than leveraging access to the filter tech as a way of compelling bad deals and cementing their dominant market position. If YouTube opened up access to the technology to the full range of musicians, not just those who they consider it commercially advantageous to offer the tech to.

The share of revenue that Google takes from YouTube is not relevant to their impact on the music marketplace; they could operate the service at a loss and the harms to musicians. The argument does not require believing that every. The old arguments about every illegal download equalling a lost sale were

I have not advocated crude upload filters. I have articulated the utility of sophisticated upload filters in some contexts, though I certainly understand there are many challenges, and a need for transparency and accountability on all sides. I haven’t even offered on opinion on the proposed directive or whether it would likely be effective–for the record, I tend to prefer more targeted approaches. All I have said is that you can’t really understand what’s going on here without making the effort to more deeply understand the perspective of creators and what their concrete frustrations are, rather than recycling complaints about industry, and unfortunately most of the vocal opponents of these measures haven’t taken the time to do this.

Maybe you consider this an appeal to emotion? I don’t think it is–and certainly less so than some of the warnings about memes being banned or false claims about Wikipedia, etc.

Kevin,
Yes monopsony is a useful framework.
Good luck with getting Google to divorce Content ID from its licensing deals.
Yes targeted approaches are preferential.
Yes the perspective of the multitudinous variation of creators needs to be understood, as does a hard empirical understanding of the impact of the prevailing economics on those creators.
No, sophisticated upload filters won’t solve the problem, for a variety of reasons, but primarily because they don’t exist and won’t for a very long time, if ever. Sufficiently nuanced decision making on the complex calculus of copyright is beyond the capacity of our computer systems. Software filters will get refined but will remain too crude to do the job. The mathematics of false positives and the base rate fallacy ultimately mean they can’t work in any way that will not lead to disproportionate pre-emptive censorship. Censorship controlled by the economic actors who control the filters.
Those commercial entities will act in their own commercial interests rather than that of musicians or wider society. How do we know this? We could just turn to your own helpful deliberations on YouTube.
You’d be more likely to derive some success in your endeavours, on behalf of hard working, poorly remunerated musicians through making the big tech cos pay a fair share of tax and using the revenues directly to fund systems like sustainable bursaries, welfare and pension schemes for struggling creators. These could even be potentially managed through existing networks of collecting societies. Though, sadly, I don’t see a substantial increase in tax revenues from the big firms, let alone the spending of such income on musicians or other creators, any time soon. It would, though, present the advantage of avoiding the damage that widely deployed, crude software filters would and do cause, especially those that are believed to be sophisticated.

Tom,
You make a fair point in relation to the forgiveness inherent in recycling music. I’d refer again to Chapter 6, I got a mashup, of James Boyle’s The Public Domain for a wonderful example of this.

Tom,
While I don’t know as much as you about the respected catalogs of Blink 182 and Good Charlotte, the questions about originality in music have been widely debated over centuries. Today, while most creators recognize they stand on the shoulders of those who came before, we also know that the work they are doing today is original and represents independent effort and labor even as it embodies and extends community traditions. (Most of the industry was unhappy with the outcome of the Blurred Lines case, but it did not set a legal precedent either) I do not hear any shortage of creativity in contemporary
music.

Anyway, digital music services have to pay the performaers of cover songs as well. The point of a content identification system isn’t to adjudicate questions about originality or fair use or anything else. It’s to accurately identify a sound recording and the composition it embodies. What you do once the sound recording is identified is where care must be taken to protect the rights of all parties. This is distinct from the implementation of matching technology used to identify the presence of unlicensed samples. This again is where it would be helpful to spend more time listening to the perspectives of musicians directly. The principal complaint is not about remixes or mashups or creative reappropriation. The fundamental complaint is not about the many gray areas. Rather, it centers on the more straightforward concern about transmission of complete copies of works.

Ray’s suggestion that we focus on more redistribution in tax policy to solve these problems is another indication that more attention should be paid to what musicians are actually doing and experiencing. While I would welcome such a change, my reaction to this proposal is informed by the annual fights that the arts community undertakes every year to preserve the very modest allocation of tax money set aside for the National Endowment for the Arts in the face of perennial efforts to eliminate the agency. Or the efforts to defend the modest gains we have made in expanding access to health care for working artists of all disciplines.

This suggestion is sort of the public policy equivalent of the well-intentioned aunt who asks her touring musician niece “have you thought about selling T-shirts?”

Again, not an ad hominem. Your original post observed that current debate has been characterized by a certain ugliness. My aim is not to contribute to that ugliness but to encourage you to understand where it comes from and what can be done to establish a healthier dynamic. You can take this candid (and unsolicited) advice, or you can leave it.

Society doesn’t treat artists with much respect. Just as in business, in policy debates that impact artists, we tend not to treat artists like their voices and opinions matter much, even on matters where their direct experience would be deeply useful. You can see this on almost any of the policy or business issues that artists have wrestled with in the last 20 years. At its worst, creative workers’ legitimate grievances are met with some combination of dismissiveness, victim blaming, and sometimes outright hostility. At best, we get one of a series of derailing tactics, or gestures at the inevitability of technological change, or a suggestion that some other issue is “the real problem” they should be concerned about. As with other forms of implicit bias, these patterns can be so common and habitual and pervasive that even intelligent and sincere people with the best of intentions fall into these cognitive and rhetorical patterns. (Creative workers are not alone here–you could really extend elements of this argument to include all working class folks).

When people constantly are made to feel, over a long period, that they’re not being listened to, it tends to encourage entrenched positions. Do creative workers get defensive? Are we sometimes touchy? Sure! Sometimes this can manifest in more extreme policy proposals, often after a series of more modest remedies are repeatedly dismissed or rejected.

Outside of this context, for example “this proposed solution is bad, instead you should focus on supporting a more robust welfare state for artists” might be a totally benign and innocent thing to say. But in this context, and if you’re talking to artists who’ve exhausted themselves fighting for a more robust welfare state for years and succeeded only at preserving a few good elements of the status quo, well, then you can’t be surprised if it feels like yet another derailment.

It would be hugely helpful if groups opposing Article 13 would say “You know, we still think this policy proposal is bad, but we haven’t done a good job of addressing the concerns of diverse creators or valuing their direct experience with these issues, and we need to prioritize listening to them moving forward–not just when it’s an opportunity to position their interests against corporate copyright owners.” And then leave it that.