European Commission Betrays Internet Users By Cravenly Introducing Huge Loophole For Copyright Companies In Upload Filter Guidance

from the over-to-you,-CJEU dept

As a recent Techdirt article noted, the European Commission was obliged to issue "guidance" on how to implement the infamous Article 17 upload filters required by the EU's Copyright Directive. It delayed doing so, evidently hoping that the adviser to the EU's top court, the Court of Justice of the European Union (CJEU), would release his opinion on Poland's attempt to get Article 17 struck down before the European Commission revealed its one-sided advice. That little gambit failed when the Advocate General announced that he would publish his opinion after the deadline for the release of the guidance. The European Commission has finally provided its advisory document on Article 17 and, as expected, it contains a real stinker of an idea. The best analysis of what the Commission has done, and why it is so disgraceful comes from Julia Reda and Paul Keller on the Kluwer Copyright Blog. Although Article 17 effectively made upload filters mandatory, it also included some (weak) protections for users, to allow people to upload copyright material for legal uses such as memes, parody, criticism etc. without being blocked. The copyright industry naturally hates any protections for users, and has persuaded the European Commission to eviscerate them:

According to the final guidance, rightholders can easily circumvent the principle that automatic blocking should be limited to manifestly infringing uses by "earmarking" content the "unauthorised online availability of which could cause significant economic harm to them" when requesting the blocking of those works. Uploads that include protected content thus "earmarked" do not benefit from the ex-ante protections for likely legitimate uses. The guidance does not establish any qualitative or quantitative requirements for rightholders to earmark their content. The mechanism is not limited to specific types of works, categories of rightholders, release windows, or any other objective criteria that could limit the application of this loophole.

The requirements that copyright companies must meet are so weak that it is probably inevitable that they will claim most uploads "could cause significant economic harm", and should therefore be earmarked. Here's what happens then: before it can be posted online, every earmarked upload requires a "rapid" human review of whether it is infringing or not. Leaving aside the fact that it is very hard for legal judgements to be both "rapid" and correct, there's also the problem that copyright companies will earmark millions of uploads (just look at DMCA notices), making it infeasible to carry out proper review. But the European Commission also says that if online platforms fail to carry out a human review of everything that is earmarked, and allow some unchecked items to be posted, they will lose their liability protection:

this means that service providers face the risk of losing the liability protections afforded to them by art. 17(4) unless they apply ex-ante human review to all uploads earmarked by rightholders as merely having the potential to "cause significant economic harm". This imposes a heavy burden on platform operators. Under these conditions rational service providers will have to revert to automatically blocking all uploads containing earmarked content at upload. The scenario described in the guidance is therefore identical to an implementation without safeguards: Platforms have no other choice but to block every upload that contains parts of a work that rightholders have told them is highly valuable.

Thus the already unsatisfactory user rights contained in Article 17 are rendered null and void because of the impossibility of following the European Commission's new guidance. That's evidently the result of recent lobbying from the copyright companies, since none of this was present in previous drafts of the guidance. Not content with making obligatory the upload filters that they swore would not be required, copyright maximalists now want to take away what few protections remain for users, thus ensuring that practically all legal uses of copyright material -- including memes -- are likely to be automatically blocked.

The Kluwer Copyright blog post points out that this approach was not at all necessary. As Techdirt reported a couple of weeks ago, Germany has managed to come up with an implementation of Article 17 that preserves most user rights, even if it is by no means perfect. The European Commission, by contrast, has cravenly given what the copyright industry has demanded, and effectively stripped out those rights. But this cowardly move may backfire. Reda and Keller explain:

the Commission does not provide any justification or rationale why users' fundamental rights do not apply in situations where rightholders claim that there is the potential for them to suffer significant economic harm. It's hard to imagine that the CJEU will consider that the version of the guidance published today provides meaningful protection for users' rights when it has to determine the compliance of the directive with fundamental rights [in the case brought by Poland]. The Commission appears to be acutely aware of this as well and so it has wisely included the following disclaimer in the introductory section of the guidance (emphasis ours):

"The judgment of the Court of Justice of the European Union in the case C-401/192 will have implications for the implementation by the Member States of Article 17 and for the guidance. The guidance may need to be reviewed following that judgment".

In the end this may turn out to be the most meaningful sentence in the entire guidance.

It would be a fitting punishment for betraying the 450 million citizens the European Commission is supposed to serve, but rarely does, if this final overreach causes upload filters to be thrown out completely.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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Filed Under: article 17, copyright, eu, eu commission, germany, upload filters, user rights


Reader Comments

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  • icon
    Stephen T. Stone (profile), 7 Jun 2021 @ 8:36pm

    Copyright isn’t brain damage — it’s technological annihilation.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 8 Jun 2021 @ 12:21am

      Re:

      Close. It's about annihilating technology.

      I'm sure that the people making the decisions are fully aware that this time as well the end result will be technological progress trampling all over copyright eventually.

      But they aren't in it to win. They're in it to delay the inevitable by just a few more years of middleman supremacy - and the resulting payouts.

      reply to this | link to this | view in chronology ]

  • icon
    Jojo (profile), 7 Jun 2021 @ 8:39pm

    This whole situation made me into a Soft Eurosceptic

    Even though the whole situation around Article 17 is surrounded by gloom and doom, there are a few silver linings to consider:

    1. The court ruling, of course, which seems to be increasingly looking to be into our favor (emphasis on seems).
    2. It’s past implementation day and only a handful of countries within the EU has actually met the deadline. Belgium and France passed their versions months ago; Germany just passed theirs recently; But (unless I am mistaken) every other nation is still debating their versions. This is because of the combination of the extremely controversial status of the Copyreich directive and of course the Pandemic delaying everything (I’m not thanking the pandemic, I’m just saying it as a matter of fact).
    3. The Commission’s Guideline itself, while it is incredibly shitty and reeks of cowardice and corporate meddling, does unintentionally showcase the horrible intentions of the Copyreich Directive even more obliquely. So in an ironic way, this Guideline is so inept and so corrupt that it could be used against the Directive easily in court.

    Trump and this Copyreich are the reasons I take seratrine for anxiety. But even I have moments to hope.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 7 Jun 2021 @ 9:16pm

    Almost as though that was the intent the entire time

    Article 17 Supporters to the public: Article 17 will protect all creativity, professional and amateur alike, and will only impact blatant copyright infringement!

    Lobbyists: Yeah, no.

    European Commission: You make a compelling argument, screw the public it is.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jun 2021 @ 11:11pm

      Re: Almost as though that was the intent the entire time

      and will only impact blatant copyright infringement

      "Blatant" copyright infringement was what led to the mass litigation against children, grandmothers and so on.

      reply to this | link to this | view in chronology ]

  • icon
    Scary Devil Monastery (profile), 8 Jun 2021 @ 12:18am

    Why am I not surprised?

    So business as usual then? Government and elected representatives bend over backwards to accommodate a long-obsolete protectionist mechanic which will seriously hinder legitimate netizens and do absolutely nothing to curb piracy?

    At this point you'd think they'd have learned. The people in power today are the people who at the beginning of the internet personally saw the most dracionian anti-piracy measures fail resoundingly...

    reply to this | link to this | view in chronology ]

    • identicon
      David, 8 Jun 2021 @ 1:41am

      Re: Why am I not surprised?

      Government and elected representatives bend over backwards to accommodate a long-obsolete protectionist mechanic which will seriously hinder legitimate netizens and do absolutely nothing to curb piracy?

      Elected representatives? You don't understand the European Commission.

      The U.S. system is to have elected representatives take bribes from lobbyists in order to do their bidding.

      There is not enough corruption in the EU for this to work, so they made the lobbyists a coequal branch of government, bypassing the bribing stage. That's the European Commission.

      The problem is that they are only coequal, so they still need to get their stuff past the European Parliament. While they cannot rely on the same level of corruption as the U.S. can, they can work pretty well with boredom and inattention to eventually have things slip through.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 8 Jun 2021 @ 6:44am

        Re: Re: Why am I not surprised?

        "...they can work pretty well with boredom and inattention to eventually have things slip through."

        I still remember when they tried to slip the ACTA signing into a plenum meant to discuss north sea cod fishing quotas.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    tp (profile), 8 Jun 2021 @ 1:14am

    Earmarking causes no problems...

    Once earmarking has been implemented. i.e. the mp4 file format etc supports ear-bit, there shouldn't be any problems coming from this guidance. Companies that do not subscribe to the guidance, can always not mark their own content as earmarked. If someone elses content is earmarked, those markings need to be respected and provide manual review for it. Users will see this guidance as the disappearance of pirated content from common content publishing platforms. This is going to make user's life easier, since he no longer need to manually filter out pirated content like what was required earlier.

    reply to this | link to this | view in chronology ]

    • icon
      Draph91 (profile), 8 Jun 2021 @ 1:25am

      Re: Earmarking causes no problems...

      What part of “ likely to be automatically blocked” do you not understand?!

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 8 Jun 2021 @ 2:23am

        Yes.

        Tp is an admitted troll at best, if not someone living in their own world that has only a remote passing similarity with the real world, don't expect them to ever make sense other than purely by accident.

        reply to this | link to this | view in chronology ]

        • icon
          Draph91 (profile), 8 Jun 2021 @ 3:52am

          Re:

          Either that or he has no idea has the Internet works

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 8 Jun 2021 @ 4:48am

            Or both. That’s highly plausible, given that he thinks the Back button on browsers is about protecting copyright instead of navigation.

            reply to this | link to this | view in chronology ]

            • icon
              tp (profile), 10 Jun 2021 @ 1:35am

              Re:

              the Back button on browsers is about protecting copyright instead of navigation.

              It can do both at the same time. That's the amazing genius that solves all problems in copyright law. Bundle the evil copyright operations to the ordinary workflow that users anyway are doing. This is also how facebook's settings are working, they always bundle some horrific privacy-breaking operation to every setting, so it doesn't matter which configuration you use, it always breaks user's privacy in some evil way.

              reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Jun 2021 @ 7:11am

      Re: Earmarking causes no problems...

      Have you ever used a figure if speech or colourful expression? I ask because those are memes lifted from creative works that have become part of everyday language. The legacy industry is so intent on controlling what it considers their property that they are killing culture and how it grows and changes.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2021 @ 3:05am

    Upload filters as a concept is spitting in the face of democracy and free speech. The whole stinker of a directive only barely passed as it is under the false pretense that filters would not be required. Now that the pretense has dropped, making the whole thing as big and obvious an affront to all that is good is going to make it easier to strike down.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2021 @ 4:00am

    The legacy publishing industries viewpoint is:-
    We are the only ones allowed to make money from creative efforts, by being the only means of legal publication.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2021 @ 5:46am

    This law is just insane, have human reviews of items that are not blocked, even google uses programs to block content, humans only review content if the dmca is objected to by the uploader or a legal rep
    So 99 per cent of content will be blocked by most company's
    It's an attack on free speech and people who use memes and satire parody and it wiped out fair use
    And if a Company makes a mistake they lose their safe harbour
    This destroys any chance of an startup that might want to allow
    User uploads in the EU
    See twitch it just tells users to delete videos if the recieve a dmca notice
    People nowadays use gifs and memes as a form of comment
    on politics and current affairs

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2021 @ 6:11am

    and people still dont believe that everything that is happening as far as laws and regulations are concerned, Internet-wise, are not being dictated by and crafted for the entertainment industries? come on! wake up and smell the coffee for fucks sake! these industries want exactly what i have been saying for years, TOTAL CONTROL OF THE INTERNET, INCLUDING WHO CAN ACCESS IT AND WHO CAN DO WHAT ON IT!! the European Commission is supposed to be impartial and cater for everyone but the last heads of it have done the same thing, completely ignored the public, doing everything possible to aide the industries! absolutely disgraceful, continuing show of corruption!

    reply to this | link to this | view in chronology ]

    • icon
      sumgai (profile), 8 Jun 2021 @ 10:18am

      Re:

      You might be unpleasantly surprised to learn that the driving force behind the whole charade of updating the EU Copyright Directive was Axel Springer Publishing House. To gain an understanding of just how much influence they wielded, look them up and study their history for a few moments. Then, just for giggles, look up the current CEO of Axel Springer, Mathias Döpfner.

      Makes most Hollywood MafiAA basturds look like kindergarten chumps.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2021 @ 7:51am

    Mike, i got some questions

    1. Will the commission change their guidance (more specifically, removing the earmarking) before the ruling?

    2. Do you think that the commission may have intentionally done this cause they don't support the upload filters, but had to give the AG something?

    3. Even if that wasn't the case, do you think it was a coincidence that it was released three days before june 7th?

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 8 Jun 2021 @ 11:23am

    "cause significant economic harm "

    So,
    No time restriction
    no Proof that they will Make money or A specific amount Greater than.
    Does this work from other countries? Considering the USA MPAA/RIAA has been creating offices and getting laws passed in other countries.
    Im not sure, but dont think there is Any international law about this.
    Its interesting How the Major corps think they can make money from Control of a product THEY DONT distribute to every person THEMSELVES. And the companies that do that, still have to pay for it First.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2021 @ 2:45pm

    Obvious (and probably wrong) answer

    Seems to me there's an obvious (though almost certainly wrong) way to deal with this.

    Don't earmark your content? It goes up right away, subject to upload filters, and afterwards requires a notice-and-takedown system. But, it doesn't feed into the upload filters.

    Earmark your content? It'll go up just as soon as our crack legal team looks through it to ensure your copyright is right and proper. It'll even feed into our upload filters, preventing anyone from using your content even if they have your express permission. Of course, our legal team is a bit backed up at the moment with the four billion other pieces of content people earmarked, so it might take a few minutes to post.

    I'm sure this can't work under the guidance, but I fail to see any other possibility for platforms trying to comply in good faith.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 9 Jun 2021 @ 1:57am

      Re: Obvious (and probably wrong) answer

      ANd
      If the Movie system would upload THEIR data BEFORE the hackers do? They could have a Paid service and get things Done allot easier.

      We have all been there, long ago, with Movie rentals.
      Even if they released NEW, at $1 per play. They would make Billions. AND they wouldnt need different versions for Different locations(yes they do that), and instant Sub titles, as needed.
      Ask Netflix'

      reply to this | link to this | view in chronology ]


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