When copyright goes wrong

by Ray Corrigan on July 4, 2018

[This is a guest post by Ray Corrigan, Senior Lecturer in Science Technology Engineering & Mathematics Faculty, The Open University, UK, and author of ‘Digital Decision Making: Back to the Future’ [Springer-Verlag, 2007]

In a world that faces enormous structural problems, it may be hard to get people to care about an obscure-seeming piece of copyright legislation. Yet the proposed new EU copyright directive approved by the European parliament’s JURI (Legal Affairs) committee on 20 June is causing a lot of unjustified unhappiness. The reasons are straightforward. In an age as dependent on information flows as ours is, information laws can have crucial consequences for markets and politics. Actions taken to protect copyright can reshape politics by giving both the responsibility and power to control information flows to a small number of key actors. The proposed copyright directive would completely change the politics of who controls information, and hence who controls the public narrative. It’s a really bad idea.

The politics of the directive are clear. Traditional branches of the music, movie, broadcast and news media industries are big fans of the proposed directive. Internet platform companies such as Google are opposed to it. When big corporations clash, it’s hard for people to know which side to come down on. The politics have been nasty. There have been accusations of spam campaigns, fake news and astroturfing, abuse of process, scaremongering and underhanded lobbying of every variety. As with much public debate in an era of short attention spans, quite a lot of the campaigning has been of the megaphone variety, along the lines of: they’re wrong we’re right, don’t believe the wrong people, believe the right people, and so on. This isn’t very informative. 

The subtlest argument in favour of the directive is that all creators should be remunerated for their work and any use of that work online. This is a commendable sentiment and an easier argument to make than asking for an additional slice of monopoly rent for copyright industries. However, the copyright directive itself says nothing directly about remunerating creators. Mostly it refers to “rightsholders”.

 What is perhaps more informative is that other publishers, journalists, libraries, scientific & research institutions, universities, civil society human rights & media freedom groups, small independent publishers, consumers, tech cos and even the UN Special Rapporteur on Freedom of Opinion and Expression are strongly opposed to it. 

The actual directive is complicated,  but there are two primary areas of dispute, relating to article 11 and article 13. 

Let’s start with Article 13. The precise version of the text agreed by the JURI committee is not yet available (as of 28 June 2018) but is reported to include the following: –

“In the absence of licensing agreements with rightsholders online content sharing service providers shall take, in cooperation with rightholders, appropriate and proportionate measures leading to the non-availability of copyright or related-right infringing works or other subject-matter on those services, while non-infringing works and other subject matter shall remain available. Member States shall ensure that the online content sharing service providers referred to in the previous sub-paragraphs shall apply the above mentioned measures 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.”

What is being proposed here is an automated filter (“appropriate and proportionate measures leading to the non-availability of copyright or related-right infringing works or other subject-matter”). This filter, in real time, could judge whether something is suitable to appear on the internet. The choice of filter and settings and its ongoing operation are to be agreed between the “content sharing service providers” and “rightsholders”.

In principle, one can see why this could be attractive, if it could work as advertised,  blocking all the bad things from the internet and letting through all the good. In particular, it would be attractive to policy makers, who are often simultaneously ignorant of the technologies and under pressure to do something about the enormous scale of copyright infringement on the internet.

The problem is that there is no magical technique that can tell the difference between copyright infringing and non-infringing material, except at the crudest level.  Machine learning is good at many things – but running filters that can detect subtle nuances of re-use is not one of those things. Under any plausible filtering requirement, online material which has not usually been thought of as invading copyright would be automatically removed.

Take parody. Until 2014 a parody of a copyrighted work in the UK constituted an infringement of copyright. Now the Copyright Designs and Patents Act 1988 has been amended to include s30A which states:


(1) Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.

(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.

In other words, parody is allowed but only to the degree that it engages in “fair dealing” with a work. This permits people to use limited amounts of copyright material without the owner’s permission. Fair dealing is not defined in the Act – it is worked out as a matter of fact, degree and impression on a case by case basis. The question is how would a fair-minded and honest person have dealt with the work? Courts take into account factors such as:

  • Does using the work affect the market for the original work? If so and the rightsholder might lose revenue, then it is not fair dealing

  • Is the amount of the work taken reasonable and appropriate?

This would require complex judgment calls from an honest and fair minded person. For sure, a software filter is not going to be able to make fair and reliable decisions about what should be permitted to be published. And that is just parody, in one member state of the EU, albeit one that will soon be exiting the EU.

The certain consequence of deploying “effective content recognition technologies” is that legal material will be blocked and/or taken down. Software filters already frequently block legal material and let undesirable material through. Erroneous takedowns are a problem on platforms like YouTube, even under the existing notice and takedown regime of article 14 of the e-commerce directive. A 2007 29 second clip of a baby dancing to a distorted background recording of a Prince song led to a takedown demand, under equivalent US notice and takedown provisions of the Digital Millennium Copyright Act. That led to a long standing legal dispute, Lenz v Universal, eventually settled out of court this year, relating to a video that was clearly lawful in the US. If it takes 11 years to expedite a straightforward case, how can a robot filter deal with a difficult one?

That’s before we consider the plague of discriminatory bias built into algorithms. 

Do you ever, for example, get irritated by the autocorrect function on your mobile phone “correcting” a name that is not a common white person name? Algorithmic bias is a huge issue in systems already deployed and we now want to hand over decisions about what will be allowed on the internet to a pre-emptive strike software filter that has no idea what a parody is.

Creators, authors, ordinary internet users will be guilty of copyright infringement and automatically censored, until or unless they can prove their innocence, through an as yet unspecified process, run and administered by “content sharing service providers” in turn monitored by “rightholders.” The result will a chilling effect as authors will attempt to adapt their writings to the vagaries of the filter just to make them available to otehrs.

There are broader problems. The internet is already a giant surveillance machine. The first step in blanket filtering for copyright infringement is blanket surveillance for copyright infringement. Google already have a major head start in the copyright robot filter stakes with their YouTube Content ID system. Article 13 amounts to doubling down on the surveillance architecture of the internet and handing the keys to it to Google and other large technology companies. While Google may not want this – since it would come with responsibilities (towards copyright holders) as well as power, it will surely use these tools to cement its own market advantage if it has to. More generally, network effects will mean that is only those large companies whose filters will be approved for use in the longer term.

There are also controversies around Article 11.  This article reads, in the version approved by the JURI committee:

Article 11
Protection of press publications concerning digital uses

  • 1. Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society providers.
  • 1a. The rights referred to in paragraph 1 shall not prevent legitimate private and non-commercial use of press publications by individual users.

  • 2. The rights referred to in paragraph 1 shall leave intact and shall in no way affect any rights provided for in Union law to authors and other rightholders, in respect of the works and other subject-matter incorporated in a press publication. Such rights may not be invoked against those authors and other rightholders and, in particular, may not deprive them of their right to exploit their works and other subject-matter independently from the press publication in which they are incorporated.

  • 2a.The rights referred to in paragraph 1 shall not extend to acts of hyperlinking.

  • 3. Articles 5 to 8 of Directive 2001/29/EC and Directive 2012/28/EU shall apply mutatis mutandis in respect of the rights referred to in paragraph 1.

  • 4. The rights referred to in paragraph 1 shall expire 20 years after the publication of the press publication. This term shall be calculated from the first day of January of the year following the date of publication.

  • The right referred to in paragraph 1 shall not apply with retroactive effect

  • 4a. Member states shall ensure that authors receive an appropriate share of the additional revenues press publishers receive for the use of press publication by information society providers.

The legalese is difficult to parse but in short, this is a new press publishers’ copyright which lasts for 20 years. It has been called a link tax, a snippet tax, a publishers’ right, a neighbouring right and an ancillary copyright. The idea is that anyone linking to and using snippets from news articles would be required to pay the publisher for a licence first.

Recital 31 of the directive offers an insight to the reasons behind the provision – a “free and pluralist press is essential to ensure quality journalism and citizens’ access to information”. It is a well-intentioned attempt to create a sustainable future for news organisations, now the advertising revenue business model, that for so long funded journalism, has been usurped by the commercial titans of the internet age, such as Facebook and Google. But it won’t work and will likely deter communication of news and negatively affect journalists.

Press publishers believe that if the EU implements article 11, it gives them a stronger basis to resist Google’s, so far, successful efforts to pick them off on a country by country basis. I admire their optimism but don’t share it.  There has been no evidence provided by the publishers, the European Commission or the Council or the MEPs on the JURI committee who voted for the directive, that the new article 11 right would reverse or halt the decline in revenues from advertising and subscription of many traditional newspapers. Given it is quite a substantial change in the law, those proposing it should be presenting evidence that it is necessary, proportionate and has a better than average probability of bringing about the desired aims, without causing wider detrimental effects.

We have already seen the failure of similar laws in Germany and Spain. The German ancillary copyright lasts for a year rather than 20. On the day it came into force Google introduced an opt in policy, indexing only news sources that decided to opt-in explicitly to having their contents displayed in Google News. Most major German publishers opted in.  A German publishers collecting society responsible for collecting ancillary copyright licence fees sued Google. A Berlin court referred the case to the European Court of Justice. The Spanish version resulted in Google shutting down Google news in Spain and a subsequent large drop in traffic to many news sites. Smaller publishers were disproportionately affected. 

There is some new text in 4a giving member states responsibility to ensure authors receive “an appropriate share” of additional revenues. However, there is no definition of what constitutes “an appropriate share” of revenues should any real such revenues materialise. Neither is there an indication of what the mechanisms for policing or enforcing this well-intentioned amendment might be, and it is likely that there will be jurisdictional conflict between different member states’ approaches. The transaction costs in managing and accessing the licencing of this new right could be significant, especially if the licences have to be negotiated in all EU member states. The Googles and Facebooks of the world with set up departments to manage it and negotiate EU wide licences for small or no fees. What is the average journalist, blogger or independent innovative new media start up to do? Or someone who’s been kicked off of Twitter due to politically unpopular views, who can no longer link to the news without Twitter’s imprimatur? Article 11 doesn’t strengthen the publishers’ bargaining position against Google but it will strengthen it agains internet users, freelance journalists and SMEs, who will all have to navigate legal labyrinths with few resources. 

Article 11 also seems to directly conflict with Article 10 of the Berne Convention for the Protection of Literary and Artistic Works. The latter specifically makes it “permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.”

In conclusion, both article 11 and article 13 of the proposed new copyright directive have predictable and serious negative consequences and they will most probably not solvethe problems they are aimed at. Of the two, article 13 is the more serious, as it purports to dictate the infrastructure and architecture of the internet. In an entirely artificially created world, where code is law, architecture rules and can rule without subtlety and discriminate unfairly and invisibly for a very long time.

If there is one thing you learn about the copyright arena, after observing it for 20 years or so, it is that it is very much like the movie Groundhog Day, where Bill Murray’s character gets to live out the same day, in slightly different fashion, over and over again. When the articles 11 and 13 fail, the copyright industries and their representatives will be back again, demanding more magical technical solutions to their socio economic problems and further expansions in the scope, depth and reach of copyright laws. Patience and stamina are the two qualities that they possess in abundance.

{ 44 comments }

1

Chris Bertram 07.04.18 at 7:20 pm

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?

2

CP Norris 07.04.18 at 8:46 pm

The way it works in the US under the DMCA is that the rightsholder sends these takedown notices out by the thousands. People can try to fight them, but only if they can afford lawyers as good as, say, Disney’s. There are numerous examples of how they can be wrong, but my favorite is how Jay Leno’s NBC show used someone else’s YouTube video, then NBC’s automated system had the original video taken down.

3

Frank Wilhoit 07.04.18 at 8:51 pm

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.

4

Cory Doctorow 07.04.18 at 10:42 pm

Chris, I think it’s pretty clear that Article 13 contemplates filters and only filters. For starters, its proponents have repeatedly cited Content ID (Google’s copyright filter) and Audible Magic (a filter that charges $50,000/month to SMEs to block infringing music) as evidence that it is possible to keep infringing material from being published. Tellingly, no one has proposed any alternatives to filters that could do this.

A site like mine — Boing Boing — gets tens of thousands of user-posted texts, images and links every month. Reviewing all of those by hand to make sure that they don’t infringe copyright would be a full-time job for 2-3 copyright lawyers.

But we’re very small potatoes. Independent code repositories — the small alternatives to Github we’re counting on to provide hosting to projects that Microsoft makes the platform an unwelcome home to as they grow to compete with MSFT’s most strategic and vulnerable products — get hundreds of thousands of code check-ins, messages, images, and links per day. They would need to hire literally hundreds of lawyers to review those materials for infringement.

It’s obvious that no one is contemplating that we train millions of copyright lawyers and set them to work reviewing every image, sound, text snippet, Minecraft skin, video, etc, posted to a European server (including those operated by small co-ops and nonprofits). So of course we’re talking about filters.

The other telling thing here is that the proponents of this proposal — the big media companies and MEPs like Axel Voss — have repeatedly told WIPO, the EU, Congress, the ITU, the W3C, the IETF and other bodies that they believe that filters are necessary for the internet and that the way they’ll get this is by getting the rules changed to change the rules from “notice and takedown” (in which rightsholders can get material removed from the net without any due process or even evidence of infringement) to “notice and staydown” (in which rightsholders can submit materials to a filter and prevent anything that partially matches those materials from ever being published).

When someone spends more than a decade demanding filters and announcing that they’ll get them by creating an obligation like that in Article 13, and then insists that Article 13 isn’t about filters, even though it couldn’t be possibly satisfied except through filtering, that’s just not very credible.

5

Cranky Observer 07.04.18 at 11:00 pm

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.

6

Neville Morley 07.05.18 at 6:01 am

This may be gratuitous pedantry, but I’m puzzled by the reference to “unjustified unhappiness” about the Directive in the first paragraph; the unhappiness seems entirely justified…

7

Chris Bertram 07.05.18 at 6:28 am

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.

8

Cory Doctorow 07.05.18 at 6:38 am

“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”

Oh! That is the current system: Notice and Takedown. That’s defined in the 2001 EUCD.

The explicit purpose of Article 13 is to replace that reactive system where rightsholders can order takedowns with a proactive one in which rightsholders supply a catalogue of works in advance and platforms have an obligation to prevent full or partial matches for items in that catalogue from being posted by users.

Notice and Takedown has real problems. It’s both ineffective and rife with abuse. But it’s infinitely better than the system contemplated under Article 13.

9

Ray Corrigan 07.05.18 at 8:50 am

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.

10

Ray Corrigan 07.05.18 at 8:59 am

Thanks Cory. I’m mixing up my directives. The Ecommerce directive Article 15 says there can be no general obligation on internet intermediaries to monitor what people say online. It is indeed the 2001 EU copyright and related rights directive that covers notice and takedown. Notice and takedown, as Cory says, is imperfect. Article 13 is several orders of magnitude worse.

11

Maria Land 07.05.18 at 9:29 am

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.

12

dax 07.05.18 at 9:50 am

“A site like mine — Boing Boing — gets tens of thousands of user-posted texts, images and links every month. Reviewing all of those by hand to make sure that they don’t infringe copyright would be a full-time job for 2-3 copyright lawyers.”

I confess to have a knee-jerk reaction against this kind of argument. I don’t see why the EU should allow copyright infringement so American and British site owners can sleep more easily. Perhaps the good of fighting copyright infringement outweighs the good of these tens of thousands of user-posted texts, images, and links?

13

Cory Doctorow 07.05.18 at 12:22 pm

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?

14

Cory Doctorow 07.05.18 at 1:40 pm

Maria, I think you have misunderstood. The point isn’t to prevent the kind of fair dealing you find aesthetically displeasing (that expression is lawful and Article 13 only requires platforms to filter infringement, though filters can’t tell the difference).

The point is that in order to block speech – whether infringing or speech that you wish to prohibit – in a way that satisfies Article 13, site owners like the proprietors of CT will have to spend incredible, unattainable sums to surveil every post made to these comment threads in order to ensure that it isn’t an infringement.

The only filters of this sort extant today are the likes of YouTube Content ID, which cost $60,000,000 (more than Crooked Timber can afford) and Audible Magic, whose small business rate is $60,000/month (more than Crooked Timber can afford). In other words, Article 13 would either force Crooked Timber to shut down, or at least end your (and our) ability to post comments here.

I’m assuming that your preference for public discourse to consist solely of speech that does not contain references is not so strong that you would trade your ability to discuss that preference in public?

15

Ray Corrigan 07.05.18 at 3:18 pm

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.

16

Ogden Wernstrom 07.05.18 at 3:20 pm

We at ChinGyou Publishing have noticed your use of a word unique to the copyrighted title of a motion picture currently in-development, “The Otehrs”, and demand that you cease the use of this word on your website, else we intend to demand payment for the estimated business losses due to our potential customers finding your website when they search for the word that is unique to our copyrighted title.

17

Sebastian H 07.05.18 at 3:47 pm

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).

18

Ray Corrigan 07.05.18 at 4:00 pm

Maria,
You say: “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… Except: you cannot share your stuff with the world unless you pay the people who’s work you used”.
One question then is how large a circle of friends and family can we share our creativity with and where before we start to pay licence fees? To whom do we pay the fees when orphan works constitute the majority of 20th century culture. Also, at what level of refinement do you grant copyright control of creative works – a headline, a snippet, a repeated distorted background 3 note sequence (as in the US Court of Appeal Bridgeport Music case in 2005)?
A great deal of creativity involves remix and/or building on the shoulders of giants. The inputs to and raw materials for creative works are often the outputs of other creative works. It’s questionable whether blues or jazz music would have been able to develop in the way they did if the copyright landscape of 2018 reigned in their early days. Might I recommend James Boyle’s excellent book, The Public Domain, and in particular Chapter 6 I got a mashup for a terrific illustration of the issues around music.
Dax,
You won’t be surprised, I guess, to discover I don’t believe “the good of fighting copyright infringement outweighs the good of these tens of thousands of user-posted texts, images, and links”. :-)
As Thomas Jefferson said, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation”. The internet is the greatest vehicle in the history of the planet for spreading ideas over the globe. Hampering this with crude legal instruments, like article 13 filters, in the name of addressing copyright infringement, would be both ineffective and disproportionately damaging.

19

CP Norris 07.05.18 at 5:12 pm

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.

20

Chris Bertram 07.06.18 at 6:15 am

The claim that the measure would apply to Crooked Timber, as made by @Cory Doctorow above, seems to be false, since the law would apply to “online content sharing service providers”, defined as follows:

‘online content sharing service provider’ means a provider of an information society service whose main or one of the main purposes is to store and give the public access to a large amount of works or other subject-matter uploaded by its users which it organises and promotes for profit-making purposes.

21

Cory Doctorow 07.06.18 at 7:33 am

Chris, that describes CT’s hosting provider.

22

Ray Corrigan 07.06.18 at 7:35 am

Chris,
The term “online content sharing provider” is used more than 20 times in the JURI committee text, not always consistently. Online service providers that “store and give the public access to a large amount of works or other subject-matter uploaded by its users” not only include large companies, such as Google or Facebook. Though the intent may be to target the likes of Google and Facebook, there are many small and medium enterprises falling into the same category; and what exactly qualifies as “a large amount of works” is not defined. In addition, Crooked Timber and Boing Boing run on the architecture of larger internet services, like WordPress and other hosting services.
As in Germany where Google effectively strongarmed press publishers into granting free licences on their one year press publishers ancillary copyright, the large economic actors will offload the costs onto users and the effects will likely be as Cory describes.
As I said, this directive, in its current form, constitutes a substantial change in the law. Those proposing it should be presenting evidence that it is necessary and proportionate and has at least a better than average probability of bringing about the stated aims, without causing wider detrimental effects. The best available academic evidence suggests it is an ill-advised proposal which will have substantial negative effects.

23

Rom, the Vacuous Spider 07.06.18 at 8:06 am

@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.

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Zamfir 07.06.18 at 9:50 am

I see claims here that this would be a boon for internet giants like Google, who can afford to develop automated measures while smaller parties cannot. I saw similar claims in the recent debates about GDPR. Even though these giants are the lobbying front line against both measures.

What’s going on here? Are they so large that they always win, no matter which way the ball rolls? Are the few dozens of millions of lobbying money only beer money to them, so they don’t think very hard about the consequences? Are they only pretending to lobby against their own interest, and secretly hoping that the measures pass? I can believe all of that, but I’d like some better insight here..

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William Timberman 07.06.18 at 1:20 pm

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….

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Sebastian H 07.06.18 at 1:47 pm

Chris, the text is terrifically unclear, but the reason it would apply to Crooked Timber is because you have an internet provider and a website host. It would apply to those services, and THEY would be forced to monitor your content through the automated tools discussed.

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Rom, the Vacuous Spider 07.06.18 at 10:54 pm

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.

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Rom, the Vacuous Spider 07.06.18 at 11:22 pm

… actually, I’m thinking that the focus on infringing material and filters is probably misplaced.

The purpose of this thing is really to create an expectation that sites (other than those falling into very limited exclusions) will pay for collective licensing just because they host user-posted material of a kind that is protected by copyright, regardless of whether any of it is actually infringing. The threat of filters is just there to give them a reason to comply.

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Chris Bertram 07.08.18 at 6:32 pm

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.

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Sebastian H 07.08.18 at 6:57 pm

“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.”

Three thoughts.

First, isnt there a possibility that it is like Y2K where a bunch of people freak out and work really hard to have things not blow up, and then they don’t blow up which causes people to complain about them being Chicken Little? The courts sometimes pay attention to what people are freaking out, and then look more closely than they would have at the regulations.

Second, isn’t it a really crappy way to write laws such that it looks like a huge number of people are going to get swept under it but that they MIGHT (if they get lucky) get saved by courts dramatically narrowing the scope? If you’re a university or google or Apple, that might be fine, because you can afford to fight with the government for half a decade or so while hiring a few dozen of the best lawyers. But if you’re a 5 or 20 person employer you’re not going to survive during the fight.

Third, if the poorly worded regulations cause a few high level players to overreact for a few years while the really high level players fight with the government, and lots of blogs get shut down “just for a few years” but then the courts decide “oh nobody should have thought that carry on, restart those blogs from five years ago” is that an ok outcome?

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William Timberman 07.08.18 at 7:51 pm

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?

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Kevin Erickson 07.09.18 at 2:59 pm

I think there is an honest debate to be had about what the best policy and technical solutions to the challenges posed by Youtube’s “Value Gap” and the lack of control creators–especially creators without much leverage–have over the unwanted use and commercial exploitation of their work online, and how to reconcile that with the challenges of content moderation at scale. As someone who represents musicians in these debates in the US policy context, I know there is a need for a balanced and measured approach that avoids creating new problems. This is why I opposed SOPA, for example.

Unfortunately, it’s difficult to have that debate when there has been so little curiosity about what the actual lived experience of working musicians has been. Instead we get familiar platitudes about “monopoly rent for copyright industries.” We get the evergreen jeremiads about big bad record labels and movie studios. Lost in all this: the many creators who control their own rights, or are compelled to make deals with larger firms because that’s the only hope of operating at sufficient scale, because the free-to-consumer business model has eroded the space once occupied by smaller scale niches and cottage industry.

It’s hard to be get motivated about the harms described by Cory Doctorow et al when that crowd have so consistently failed to reckon with musicians’ own accounts of their experiences. The frustration is not only coming from large media companies. It’s coming from independent media. It’s coming from artists and filmmakers and musicians themselves, from the most DIY level up to the most commercially successful. These concerns aren’t about holding fast to an old way of doing business but about finding a way of doing digital business that is sustainable. We want to see diverse digital businesses succeed by being good partners to creators and giving them agency and flexibility, and by treating fans fairly. But right now, these big businesses have all the leverage.

It’s also hard to get motivated when we see folks making factual errors which raise questions about what else they’re getting wrong (e.g. the claim Audible Magic costs $50,000 to SMEs (pricing actually starts at $1000), or that Article 11 is a “link tax” instead of a licensing requirement–taxes are paid to government, licenses are paid to rightsholders; In public policy, there’s a long history of people referring to things as taxes that are not actually taxes– labor regulations, environmental protections. Certain lobbyists, advocates, and officials return to this strategy again and again because it’s effective—after all, who likes to pay more taxes? But it’s fundamentally cynical. It prevents us from having an honest, good faith debate.

Here’s some questions to ask yourself when you are thinking about filtering technology: Do you know what artists’ experience with Content ID has been on Youtube? Particularly artists working in diverse genres with diverse business models and diverse assumptions about the scale of their potential audience? Do you know how access to this system is granted or withheld? Do you know how access to Content ID is predicated on acceptance of YouTube’s licensing deals? Do you know how YouTube’s licensing terms and compensation structures compare to competitive services? Have you talked to the folks who strike these deals on behalf of independent labels to know whether Youtube is using the presence of uncontrollable volumes of unlicensed content on their service as leverage to pay artists less? Do you know YouTube’s market share for digital music listening? Are you aware of the multistakeholder process that USPTO led to try and address these issues on the US front, through consensus and the establishment of voluntary best practices? Do you know how that process ended and why?

(I understand that this debate is not just about YouTube and musicians. I’m starting there because it’s the relevant piece of the puzzle that most non-specialists seem to know the least about, but always gets mentioned as the primary example of what filtering looks like in practice. I don’t blame anyone for not knowing the answers to these questions, it is in part because YouTube is the most complex and arguably the least transparent of any digital service in terms of how its compensation model is structured.)

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Ray Corrigan 07.09.18 at 8:41 pm

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.

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Kevin Erickson 07.09.18 at 10:43 pm

Ray, I think you may misunderstand the notion of value gap in instructive ways. It is not fundamentally about the cultural industries trying to get back some of the revenue that’s flowing towards big tech firms, though that would be welcome. Youtube pays less than any competing interactive digital service for delivery of the same musical work and the difference between what YouTube pays and what other services pay is an objective, measurable gap. The argument is not that Google is keeping the money for themselves.

I don’t see anywhere that I’ve ad hommed or strawmanned Cory—I have read Cory’s book “Information Doesn’t Want To Be Free,” which I assume is representative of his views on the topic, and my impression is that he likely knows some things that I don’t about his line of work–writing books and blog posts and consulting with various corporations and speaking and advocacy and being a charismatic public intellectual, but he doesn’t know much about the music business, or music licensing, or the diversity of career paths for working musicians. None of this would be objectionable, except to the degree that he presents himself quite confidently as an expert in fields that he has never worked in. If you correctly sense my frustration, it’s not from lack of engagement, but because I’m all too familiar with the sort of misinformation and overgeneralizations about music workers that he propagates, and how he make things materially more difficult for my friends out on the road.

I certainly would love to see less polarization and find common ground More research would be welcome! But many of the questions that I posed don’t require academic studies. They just require enough curiosity to go looking for the answers. I come from a community organizing tradition within music subculture that starts with the observation that communities themselves produce the best experts on their lives and livelihoods. Do we seek out and trust their voices? Do you feel you have done enough to hear them in this debate?

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Tom 07.10.18 at 1:37 am

@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?

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Ray Corrigan 07.10.18 at 10:41 am

Kevin,

As I understand your construct of it then, the “value gap” is not about Google keeping the money for themselves, just about Google, through YouTube, failing to pay enough for musical work? Either this is a non sequitur or my instructive misunderstanding persists.

Authors’ and musicians’ interests will sometimes coincide, sometimes not. There is an almost infinite variety of types of creative people, all of whom have a legitimate stake in the copyright landscape. There is also a whole cadre of commercial intermediaries who capture, distribute and monetize some of the creative outputs of a proportion of these creative people. The internet changed the game on who had control of the distribution channels for these works. It’s not possible to maximise the gains to all of these stakeholders, all of the time. There will always be trade offs, winners and losers. It would be good to shape the system in a way that the creatives get a greater share of the benefits.

I’d repeat, however, that consumer value or or even value to other commercial entities or particular stakeholders is not the same as rights holder losses.

I wouldn’t underestimate the value of academic studies. Answers without evidence have been a long time staple of copyright policy and still musicians and other creators struggle to make a sustainable living from their artistic endeavours.

Crude upload filters will not fix the difficulties of your friends (or mine) out on the road or of the music communities themselves who produce the best experts on their lives and livelihoods. Neither will appeals to emotion, though that’s proved an effective tool for getting copyright (and other laws) changed, for many generations.

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Kevin Erickson 07.10.18 at 7:24 pm

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.

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Kevin Erickson 07.10.18 at 9:24 pm

Yikes, apologies for incomplete sentences. What I meant was : they could operate the YouTube service at a loss, because the user base or consumption data was valuable in some other part of their business but the harms to musicians would remain. The argument about these harms does not require believing that consumer value is rightsholder loss, and the old arguments about every download equaling a lost sale were certainly dubious.

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Ray Corrigan 07.10.18 at 11:01 pm

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.

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Tom 07.11.18 at 7:14 am

@Ray,

Thanks for the reply.

I’ve pointed this out because I cringe when people argue for musicians should be more protected by copyright. I’m almost certain that if the filter software are properly setup with today’s copyright standards, to detect tracks with similarity in lyrics, rhythms, melodies, bass, drum and whatever else for as short as even 3 seconds and label them as copyright infringement, similar to what went to the courts for music copyright infringement cases in the past; nobody (Universal included) would be able to upload or create any music. This is not because software is bad, it is because software is too good at sticking to the rule, what strays from the rule left, right and centre is human judgement on what is and what isn’t breaching copyright in music.

There are already uncountable numbers of musical tracks created by the pop music industry, individual musicians, amateurs and gaming companies that it is almost, if not simply impossible to create anything “original”.

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Kevin Erickson 07.11.18 at 1:47 pm

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?”

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Ray Corrigan 07.11.18 at 3:23 pm

Kevin,
Points for subtlety on that ad hominem.
If it helps and since we’re on the subject, might this particular “well intentioned aunt”, from a position of apparent oblivious ignorance of the travails of the NEA and equivalent agencies around the globe, be permitted to wonder, have you thought about selling T-shirts?
One of the interesting things about the written word is the phenomenal range of interpretation and conclusions that can be derived from it by readers, that were never conceived or intended by the writer.
Cardinal Richlieu had a point about six lines and the honest man.

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Kevin Erickson 07.11.18 at 10:33 pm

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.

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Ray Corrigan 07.12.18 at 7:49 am

Article 13 is a bad policy proposal 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.

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