Rumble in Strasbourg: Hacks vs. Hackers in EU copyright law row

There’s something very Brexit about the hacks vs. hackers divide separating European journalists from digital activists in a current row over copyright freedoms online. The European Union plans to use copyright law to rein in Big Search & Social and in doing so ‘save’ independent media from, if not quite extinction, then at least penury.

For the journalists this is no more than the Fourth Estate’s defenders of democracy deserve, a chance to get one over the platforms putting them out of business. For the digital activists, it’s nothing less than an existential battle for the freedom of the internet, in particular its users’ rights to share, remix and critique information.

This, say the hacks, is just tech’s version of Project Fear. The status quo isn’t working and they’ll take their chances outside, whatever the bulk-mailing technocrati thinks.

The proposed EU Copyright Directive’s Articles 11 and 13 binds two objectives. First, to make the platforms legally responsible for copyrighted content uploaded by their users. Second, that some of the proceeds Big Search & Social take on the back of that shared content comes back to the copyright holders, specifically journalists. The techs argue, with plenty of evidence, backed by academic opinion, that the tools used to enforce such a regime are unreliable, target the innocent and stifle free speech. As for the ‘link tax’ – requiring platforms to pay news sources for content their users share – when tried in Spain, rather than helping, it actually hurt the independent media.

The proposal, with revisions, goes back to the European Parliament on September 12, where its first iteration was rejected on July 5. If passed, it joins the EU ‘trilogue’ negotiation process between the Parliament, the European Commission and the European Council of member state governments. Finally member states will rewrite their own copyright laws based on what’s agreed. A broad alliance of media publishers and media trade unions has backed the EU plan, arguing that the platforms make millions by exploiting the media’s hard earned news stories for free. To them Article 11/13 is a “recognition of the need to protect investment in content,” for fairness in the “online exploitation of news content,” and to ensure a healthy, democratic, diverse, sustainable and free press.

As the AFP’s Sammy Ketz writes, “the media have endured a lot of pain for a long time before reacting to the financial drain… They are simply asking that the sales revenue is shared with those who produce the content, whether they are artists or journalists.” This has not gone down well with supporters of a free and unfettered web, many of who hold that the mainstream media has only itself to blame for its plight. Extracting his own meaning from Ketz’s article, and putting it into faux quotes, Techdirt’s Mike Masnick: “No other justification (by Ketz) is given other than ‘the news business is struggling, the big companies have made lots of money, therefore, they should give that money to news orgs’.”

“This law is not aimed at sites that actually play fast and loose with copyright,” writes fellow critic Julia Reda. “It’s meant to get social networks and search engines to fork over money to struggling European cultural industries.” Well, duh, yes. “Facebook made $16bn in profits in 2017 and Alphabet (Google’s parent company) $12.7bn,” contends Ketz. “They simply have to pay their dues. That is how the media will survive and the internet titans will be contributing to the diversity and freedom of the press they claim to support.” Masnick adds: “Now they want Google and Facebook to pay them, when they were the ones who failed, and Google and Facebook succeeded? How does that make sense at all?”

It makes perfect sense to the media organisations, who clearly feel that tech has had its shot without much reward for them and with much damage. In another Brexit echo, the passing of Articles 11 and 13 is painted as a cliff-edge moment scheduled for September 12 when the internet will die and Europe’s media will fall to its doom. That is unless Google & Facebook are allowed to continue freely building mass audiences from others’ works, and hogging the advertising revenue that accrues to its sharing. The mainstream media ain’t buying it, and may sense that sacrificing some internet sacred cows on the way might be worth the risk of jumping off that cliff.

Masnick claims that historically, newspapers aggregated communities of local readers, and sold their attention to advertisers. But the internet opened up many new communities, and the ones that formed around old school news businesses flopped – in part because those businesses did nothing to cultivate community. “Unfortunately,” he claims, “many publishers (and journalists) incorrectly thought they were in the “news” business, rather than the community business.“  He’s wrong. Old media cultivated communities well enough before platforms inserted themselves between the media and the ad revenue those communities generated.

But there are other issues than the techs’ disdain for mainstream media’s alleged resistance to ‘disruptive innovation’, and mainstream media’s expectation that it should be paid for its contribution to democratic discourse and public accountability. As noted by UN Special Rapporteur for Freedom of Expression rights David Kaye, the proposal formalises the existing system of pre-censorship by ‘bot’ – code designed to spot alleged copyright abuse so it can be blocked at point of upload.

Reda says the bots are already censoring dissent – her critiques of the bots were cut from Google search due to an unproven US DCMA claim that she had breached someone’s copyright.Automated systems at Google delisted her pages, sight unseen. “If humans had been involved at any point in this process, the absurdity – or maliciousness – of this request would have immediately been spotted. But they weren’t. There are no checks and balances in place.” It blatantly proved the point of the protest, says Reda: “The sites were removed by exactly what they were warning of: Copyright censorship machines.” Kaye warns that there are no effective options to appeal against such arbitrary blocking, and that the entire idea of pre-censorship of content flies in the face of freedom of expression’s principles.

Madrid sought to secure life-supporting funds for its local media by forcing Google to pay the kind of ‘link tax’ now proposed by the EU. Google simply cut off the country’s media from the search engine’s News pages and whole chunks of their readerships disappeared overnight. Carlos Astiz of Innovative Media Publishers reported that Spanish publications saw an 8-to-15 percent decrease in online readers. “Many small publications haven’t survived this damage where it was attempted and many other will follow if this measure were to be introduced across the EU.”

Ethan Zuckerman, director of the Center for Civic Media at MIT, argues for a world where we have dozens of interoperable social networks focused on different goals and purposes, not just a handful of dominant giants. UK Labour leader Jeremy Corbyn has proposed giving independent media non-profit status, and diverting some of Big Search & Social’s profits into funds to support them. Zuckerman writes: “When I’ve proposed publicly-funded social media networks, it’s not because I believe taxpayers should pay for a replacement for Facebook. It’s because I think we need networks that take seriously problems like deliberation and diversity, and I don’t yet see those projects emerging from the market.”

Perhaps getting tough with Big Search & Social is the only way open to their self-styled victims, and copyright compliance the one rulebook the giants might abide by. Google responded to Spain’s temerity by taking away the ball when Madrid tried to change the rules of the game, but all Spain is not all the European Union.

Corbyn prefers a negotiated peace with the web giants. Google reached a settlement with publishers in France and Belgium. “(But) if we can’t do something similar here, but on a more ambitious scale, we’ll need to look at the option of a windfall tax on the digital monopolies to create a public interest media fund.” Advocates for the change in the law couch the proposed legislation in terms that are primarily concerned with whether or not the internet functions as a fair and efficient marketplace.

Masnik’s Copia Institute’s website avers: “Disruptive innovation always meets with resistance, and the best way to overcome it is rarely by waiting for the worlds of policy and legacy business to change — it’s by leveraging technology and innovation to find more immediate solutions.”

At this point the massed media might fairly ask, when is “immediate,” exactly? Or in reference to the upcoming session at the European Parliament – if not ‘immediate’, then why not on September 12?

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