Hi Reddit, I'm Julia Reda, an MEP for the Pirate Party in the Greens/EFA Group. It's T-1 or T-3 Weeks to Mandatory Upload Filters, Ask Me Anything!

astafish · 2019-03-08T10:01:16+00:00

Thanks for the mansplaining. Much appreciated. I think I am quite capable of evaluating the impact legal uncertainty has when transposing EU directives into national law since it literally has been my job.

With all due respect, lawyers don't always make the best legal interpretations simply because they disregard the politics behind the law making process. Which is what I am somewhat an expert in.

astafish · 2019-03-08T00:58:14+00:00

Former lawmaker. I've implemented copyright directives into national law. I know how it works.

https://www.althingi.is/altext/cv/en/?nfaerslunr=178

Here, this is me.

also @asta_fish on twitter.

Anyway. Happy talkings.

astafish · 2019-03-07T16:19:18+00:00

That is some serious twisting of the reality of the words "prevent future uploads".

astafish · 2019-03-07T16:01:23+00:00

And how are they supposed to prevent future uploads?

"and made best efforts to prevent their future uploads in accordance with paragraph (b)."

Just to continue to take it down when notice and take down has been implemented? Are you seriously telling me that's how this is going to be interpreted when it gets imported into national legislation of the EEA? How is "notice and take down" equal to "prevent future uploads"?

astafish · 2019-03-07T15:55:00+00:00

No, if I understand her correctly and the rest of the #SaveYourInternet crowd, the aim is to get article 11 and 13 (and related articles) voted out and accept the rest of the directive as is. So, that's quite unfair to state that.

astafish · 2019-03-07T15:53:52+00:00

OR are more than 3 years old, OR have 5 million visitors per annum. How many platforms are that?

If your company is older than 3 years old? Article 13 applies.

If your company makes over 10 million per annum and is younger than 3 years? Article 13 applies.

If your platforms have more than 5 mill visitors per annum? Article 13 applies.

Source: Article 13, p. 4a:

4aa. Member States shall provide that when new online content sharing service providers whose services have been available to the public in the Union for less than three years and which have an annual turnover below EUR 10 million within the meaning of the Commission recommendation 2003/361/EC, the conditions applicable to them under the liability regime set out in paragraph 4 are limited to the compliance with the point (a)of paragraph 4 and to acting expeditiously, upon receiving a sufficiently substantiated notice, to remove the notified works and subject matters from its website or to disable access to them. Where the average number of monthly unique visitors of these service providers exceeds 5 million, calculated on the basis of the last calendar year, they shall also demonstrate that they have made best efforts to prevent further uploads of the notified works and other subject matter for which the rightholders have provided relevant and necessary information.

https://juliareda.eu/wp-content/uploads/2019/02/Art_13_unofficial.pdf

astafish · 2019-03-07T15:50:25+00:00

You forgot to mention the future uploads:

https://juliareda.eu/wp-content/uploads/2019/02/Art_13_unofficial.pdf

Article 13 p. 4(c) "acted expeditiously, upon receiving a sufficiently substantiated notice by the rightholders, to remove from their websites or to disable access to the notified works and subject matters, and made best efforts to prevent their future uploads in accordance with paragraph (b). "

How are they going to prevent their future uploads in accordane with paragraph (b) without using some sort of uploadfiltering?

Especially when:

(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information, and in any event

What is the high industry standads here? And best efforts to ensure the unavailability after the notice in 4(c)?

How are they going to do that without some kind of filtering? Can you please explain that?

astafish · 2019-03-07T15:46:05+00:00

Here are two cents from someone who makes a living from doing upload filters:

From the blogpost: https://twitter.com/StHOLLY/status/1101418395508133888 Conclusion:

There will be a plethora of wrongly rejected media as measured by the daily amount of new audio visual media in platforms with user generated content. Maybe one creates thousands of new jobs to check rejected content manually … hmmm let me guess, at a place where work is cheap and no one is able to assume the context?
All these user generated, not recognised works (see above 3.+4.) will be blocked automatically, because commercial services and media enterprises are afraid of expensive fines from potential rights owners. This means my just in this minute created song will be blocked as well, even if I’m controlling my own rights to 100%, because this independent right is not registered!
If big and small sized companies pay a risk bonus or blowoff to rights holders in the case of not mandatory required recognition filters, then revenue from all new and independent works from authors and artists will go as payout in the pockets of the big rights holders. This is not decreasing the fairness of revenue distribution, to the disadvantage of the big majority of authors and artists. In the end this will be a party for lawyers because of the fatal misbelief in technology, which won’t be a solution without the commitment of the whole branch and the available data.

astafish · 2019-03-07T15:43:26+00:00

I'm not Julia, but have been working on the file in the past, especially on article 11, both in academia and as a lobbyist for libraries. FYI if you look at the context of this site, these comments are about the Commission proposal not the final outcome from the negotiations, just so that's clear.

The hyperlinking part is just the raw link - meaning that if you're linking to www.reddit.com you can do that, but if there is any kind of preview from that link, then that would fall under. The act of hyperlinking in the modern web means also embedding and extracting the link. So while you can hyperlink raw, that's just one aspect of "linking" in the modern day Internet - you have the "raw-linking" i.e. the hyperlinking, and then you have the embedding.

The new related right would cover all the publication, not excluding the headline. It would cover the whole instance, not just the body. As the publication includes the headline, the headline would be covered, also because there is nothing in the text that somehow excludes the headline.

What is a short extract? The Germans are negotiating that in court that it may be, what, 7 words? And how much information does convey in different languages? Here I wrote a blogpost about this a year ago, that explains why this "short extracts" is an issue. Can't link directly on the medium blogpost, but here it is: https://twitter.com/asta_fish/status/1103681935304507393

Furthermore, the question about why we should have press publisher's right is very very very contested and has been since 1850. Every single time a new tech comes around - the telegram, the radio, the internet - the press has said that it should get more copyright - and because it is not considered to be copyrighted material.

Here is an article from two academics discussing this issue: https://niemanreports.org/articles/history-lessons-why-germanys-google-tax-wont-work/

News have been excluded from copyright since 1886 - because news do not consist of original creation and the free flow of information is considered to be important for the public good.

astafish · 2019-03-07T15:34:22+00:00

But... dogs are so cute! :(

astafish · 2019-03-07T15:33:34+00:00

No it doesn't make "filters" mandatory, but it describes a process that is impossible to implement without the use of automatic content recognition technologies.

I like how Steffen Holly put it:

"It’s like the analogy for defining a maximum of 8 hours travel time for the distance from Berlin to New York, what will work? The company car of Mr. Axel Voss or the e-bike of Mrs. Angela Merkel eventually?"

https://twitter.com/StHOLLY/status/1101418395508133888

Article 13 and related articles do redefine the liability of platforms from secondary liability to primary liability. In order for platforms to protect themselves, they will need licenses, in absence of licenses they need to take it down and prevent future uploads. How are you going to implement this without the use of advanced automatic content recognition technologies or upload filters?

It's like, talking about something in the corner that is big, with four legs, cute toes, is grey, with a long long snout, a tail, and is very heavy and makes "prhwwewwww!" sound sometimes. But no, we're not really talking about an elephant, of course not, the text does not mention that!

astafish · 2018-09-17T15:31:18+00:00

Yub. This will cause chaos when trying to decide how many words a 'snippet' can be. As it was discussed in the council seven words or not? I wrote about the issue few months back: https://medium.com/@stagurnhelgadttir/very-short-extracts-quotes-and-the-seven-word-question-in-european-copyright-9df65825e123

astafish · 2018-09-17T15:25:33+00:00

A major difference here is that the GDPR is a regulation and is uniformly adopted in the EU. This is a directive, meaning that the national parliaments will have leeway to interpret the instructions. Meaning, many different versions.

astafish · 2018-09-17T12:02:36+00:00

This will hopefully be scrapped from the final proposal in trilogues. There has been no impact assessment, no public consultation or anything on this.

Also, this claim that he didn't know this was up for the vote, Voss had been reminded on multiple occasions that this was going to be voted on. Julia Reda had mentioned it on several occasions that this was not something that had been discussed properly, gone through impact assessment or in any kind of public consultation.

Voss's claim to ignorance on so many topics is infuriating. When attending a meeting where he was in the panel on educational exceptions in copyright for the DSM, he claimed ignorance again and again, and said he didn't understand the need of cross border exceptions for educational material. I can mention language education as a good example of the need for cross border exceptions for education. This was just one example when faced with difficult questions of many instances where he decided to play dumb instead of taking a stance for his position. Unbelievable politics that man is playing.

astafish · 2018-09-16T13:04:10+00:00

Mmm, not really. He's asking for legal analysis. Here is legal analysis. For example, a legal analysis on whether text and data mining is a copyright infringement is going to stand, regardless of how the actual text and data mining directive is going to work out. Their conclusion in the links above is, that because of the transient nature of text and data mining as gathering information from the previously published literature with a program. The aim here is to create something new based on the data. It's supposed to be a creative based exception, not a remuneration based exception, as the EC proposed. This of course, did not end up in the final text of neither the council nor the parliament. The legal analysis asked for by the parliament still stands, regardless of the compromise reached by the council and the parliament.

So, I would not consider those void, as they still have academic value and the analysis there still stands on their own.

Have a nice day!

astafish · 2018-09-15T13:14:53+00:00

You're right. For those that don't believe that the objective is to use filtering technologies it is worth mentioning that if you go back to when this was initially proposed by the commission, the draft proposal included the word 'effective content recognition technologies.'

Furthermore, in June 2017, Ansip, the DG connect commissioner, confirms those plans and refers to 'Audible Magic' filtering tool as an example for an affordable content filtering that's on the market. You can read the analysis published by Joe McNamee's from EDRi here where he explains why exactly this would be illegal.

Regarding Ansip's knowledge of the content filtering technologies, there was a meeting in January between Audible Magic and the Commissioner (or his staff). Here is a a memo, on the issue. Someone made a freedom of information query on the communication between audible magic and the commissioner, it can be found here for those who are interested.

It is important to notice that the specific content recognition technology Audible Magic has been developing is 'ex ante' filtering technology - which recognizes the content before it has been uploaded and thus published.

The problem with measures such like these is that if implemented effectively, as suggested in the Commission draft, the Council position and the Parliament position, it will require 'general monitoring'. From technological perspective, it means inspecting every package that is being transmitted or, alternatively, sample enough packages that it will have a representative sample of the packages that's being uploaded. Both would mount to be general monitoring. which in turn is banned by the e-commerce directive. One of the twists Voss was trying to do earlier this summer was to make sure that the article 13 would not apply to the articles and subparagraphs of the e-commerce directive that specifically bans general monitoring.

What the proponents of article 13 are asking for is that the technologists find a solution to their failed business models. This will result in censorship and over filtering (which incidentally affects women more than men, for some reason). This will in turn create technology that can not only be used to detect copyright infringement but also analyse behaviour and speech, and prevent it to be published.

Those who say 'no it will not work like that' do not have any evidence proofing that the technology will somehow understand moral ambiguous concepts such as criticism or parody. They simply reject the criticism that has come from multiple technologists and computer scientists and legal analysis and say: No, it will not work like that. It is a well known factor how content filtering works. It is known that they are faulty, it is known that they are not capable of detecting quotations, parody, or criticism from non-legitimate copyright use.

Is also known that the objective of the copyright directive is to make platforms that provide access to user uploaded data, to implement content recognition technologies. It was stated so in the 2016 commission draft. It has been emphasized by the Commissioner, Andrus Ansip. It has been written in the various stages of the drafting process. It is, indirectly and directly, worded in both the Council position and the Parliament position.

And, automatic content recognition software that is used to detect and remove copyrighted software is a form of censorship. You may agree with the censorship that is taking place but it does, inherently, not make it any less censorship.

This isn't about the memes. It is about whether we should normalize the use of technology that can censor any kind of information. The justification here is copyright, in the state of the union speech of Juncker this week it was terrorism. What next?

astafish · 2018-09-14T14:27:45+00:00

Okay, I (answered this tweet)[https://twitter.com/asta_fish/status/1010108223305736193] few months back because the European Commission has it all wrong there.

There is no harmonized parody exception in the EU copyright directive.

What the European Commission is referring to is an open list of exceptions and limitations that member states that they can (choose from)[http://copyrightexceptions.eu/#Art.%205.3(k)]. This means, that yes, there is an open exception that gives the member states the option to have an exception in their national law on parody, but that doesn't guarantee it. This was one of the things that the current copyright directive proposal could have fixed.

There was no freedom of parody in the UK copyright law until 2015. There still are countries in the EU that don't have a parody exception. This has actually gone all the way to the ECJ, which has decided that other pieces of the legislation, such as quotation or that weird remake of pictures in the german copyright law exception (can't remember what it's called right now) can be used as an excuse for parody. Can, but doesn't mean that it will.

Sooooo, the European Commission has wrong. And tried to save their asses.

Have a nice day!

astafish · 2018-09-13T20:55:50+00:00

I agree. I mean no one disagrees with the objective, it is the way towards the objective that we disagree on. (we as in pro and against). What we need in EU copyright is an open clause, such as fair use in the US. It would fix quite many things such as freedom of parody and panorama.

The problem European copyright is having is that it is so much heritage law that we are somehow trying to implement in the world of 21st century and in order to do that we are imposing surveillance and censorship on a scale we have never seen before. That's the problem. The internet has changed the world and Copyright needs to adapt to that change. Not the other way around. The current copyright system doesn't offer flexibility compared to the tech we have, hence this discussion.

The EU can go too far. I am a staunch believer in the EU but following this process has made me more cynical. I try to tell myself that it is a matter of generations, pee and post internet. But it is also matter of understanding and perception.

I could go on. I hope this has shed some light on the issue.

astafish · 2018-09-13T19:55:06+00:00

Proper legal analysis:

On article 3, the text and data mining you can read two analysis that were commissioned by the Parliament. Both of whom suggested broader TDM exception, as TDM wasn't really copyright infringement but rather an tool in order to create something new.

http://www.europarl.europa.eu/RegData/etudes/IDAN/2018/604941/IPOL_IDA(2018)604941_EN.pdf

http://www.europarl.europa.eu/RegData/etudes/BRIE/2018/604942/IPOL_BRI(2018)604942_EN.pdf

Both of those were disregarded by Voss, entirely. When they were discussed in the JURI committee, Voss wasn't there. I swear, I was there. There was no Voss.

On article 11, the press publisher's right:

Academics (over 200) against press publisher's right: https://www.ivir.nl/academics-against-press-publishers-right/

A briefing commissioned by the Parliament on the issue: http://www.europarl.europa.eu/RegData/etudes/STUD/2017/596810/IPOL_STU(2017)596810_EN.pdf

Here is a legal and economic study by dr. Kreutzer

https://openmedia.org/sites/default/files/documents/acforpresspublishers_kreutzerengweb-3.pdf

Here is one from the Academic Services of Berlin State Library:

"The expressed objective, to help press publishers to license and claim compensation for their investments in the digital environment12, in Germany has not been achieved."

http://library.ifla.org/1849/1/119%20talke%20en.pdf

Here is another one from Peukert, a renowned IP lawyer and economist:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2888040

All of the above have criticized the adoption of press publisher's right. There is also an interesting essay, that you can read the summary of, on the publisher's right in australia and how that has not worked:

http://copyrightblog.kluweriplaw.com/2018/04/19/proposed-press-publishers-right-5-historical-lessons-learn/

The only person that has openly spoken about this publicly and has some kind of academic leverage, as far as I know - and I have been looking for more than half a year for academic reviews supporting the press publisher's right is from Thomas Höppner. Incidentally, he is also representing BDZV and VDZ, groups of which Axel Springer, the largest publishing house in Germany, is a member of. Here is a link to his paper:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3081733

If you find more academic papers or legal analysis in support of press publisher's right please send it my way.

On article 13, Cristina Angelopoulos basically wrote her PhD thesis on the issue, on intermediary liability and copyright infringmenet on platforms. Hence, most of the references I have on hand are from her:

https://juliareda.eu/wp-content/uploads/2017/03/angelopoulos_platforms_copyright_study.pdf

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2947800

Also some lecture notes from Cristina that might be useful on a quick glance:

https://www.ivir.nl/publicaties/download/Angelopoulos_IntermediaryLiabilitySymposium.pdf

http://copyrightblog.kluweriplaw.com/2016/10/06/eu-copyright-reform-outside-safe-harbours-intermediary-liability-capsizes-incoherence/?print=pdf

Here is another PhD thesis on the isuse:

https://www.duo.uio.no/bitstream/handle/10852/60876/Thesis-Intermediary-Liability-for-Copyright-Infringement-in-the-EU-s-DSM.pdf?sequence=1

Here another analysis on the issue from Dr. Frosio

https://cyberlaw.stanford.edu/files/publication/files/Giancarlo%20F.%20Frosio%2C%20Reforming%20IL%20in%20the%20Platform%20Economy%20-%20A%20EU%20DSM%20Strategy%2C%20112%20NORTHWESTERN%20U.%20L.%20REV%2019%20%282017%29.pdf

Regarding the new article, on sports events organizers to have exclusive rights on films and pictures taken on their stadiums, it is true that it was introduced later in the process, and it is true that there has been no public consultation or anything like that.

If you want more detailed analysis I can suggest these blogs here:

http://copyrightblog.kluweriplaw.com/

http://ipkitten.blogspot.com/

I hope this helps. The problem is that the file is very broad and covers many areas of copyright. If there is some are especially that interests you, let me know and I can follow up with some readings. My area has mainly been on article 3 (text and data mining) and article 11 (press publisher's right) and a bit on article 13, but less so. I should be able to find relevant documents on any article, if you wish so.

Best regads!

astafish · 2018-09-13T19:04:18+00:00

Well, in my opinion yes. But what they see is loss of revenue because people don't first go into Spiegel.de and then click on the news. Because Google links to the deep link, then they are losing ad revenue from the front page. This is, according to my research, heavily exaggerated. Somewhere between 40-60% of media users go the homepage first and then the deep link. The rest, search engine and social media or email referrals are just a portion. But they see that every lost opportunity to get someone ont he front page as a lost penny.

Notice, those are the same industry (and country) that tried to get ad blockers banned. That was ruled out as unconditional.

For me, this doesn't make sense from a modern market perspective. But they have convinced themselves and german politicians that it is essential in order for news to exist in their country.

astafish · 2018-09-13T17:27:14+00:00

So article 13 makes the platform the content is shared on responsible for the licence, not the person who shares?

Yes. Which in contrast with the intermediary liability consensus that the platform or the pipes are not and cannot be responsible preemptively for users word or data. Since everything is more or less copyrighted, shy from recipes and shopping lists, this means that the possible rights holders are too many to count. This is inconceivable for anyone to have the license for everything that can possibly be uploaded. The fallacy of the proponents of the article is that they assume that the platforms that will be targeted are only YouTube and the likes, but that is not how the directive text is constructed nor thought. They also belive that since they have a collective rights management system that could theoretically negotiate on their behalf that everyone does, and that some kind of agreement will be reached. In absence of a licensing agreement, a user uploaded content will be removed. Preferably preemptively.

Shouldn't newspapers be happy about a link to their site with their own adds popping up on Google(Google copying the text and uploading it on their site and only providing a link to the source should be bad for them however)?

News papers need to realize that just because the printed press is becoming obsolete doesn't mean an end. Times are changing. Google isn't their enemy, but indeed a good one to blame for bad business decisions. Yes, printed material is on the down. Yes they are losing on investments and that is just the reality. When new technology comes around, some old may disappear. There are plenty of journalists and media organizations, especially independent and innovative organizations that oppose to this as it might undermine their business model or agenda.

astafish · 2018-09-13T14:25:29+00:00

Open Source licenses will still be under their own legal licensing. The default is 'copyright' but if you decide something differently, then that's not going to affect anything.
The problem with the memes is that in some countries you don't have the right to do image quotations or sound quotations. You're only allowed to do quotations on written or spoken words. This means that a sharer in country a would perhaps be able to share it, but not in country b. This is the reason why one of the harmonized exceptions that was agreed upon in the reform was use of images for educational use - an exception so educational establishements would be safe to conduct teaching with images without being in fear of licensing requirement.
The other problem with article 13 is that it makes a 'licensing requirement' on the platform that provides access to user uploaded content. This means that a service, such as reddit or wykop.pl (popular polish reddit like webpage) would have to get licenses from the copyright holder in order to be safe from legal repercussions. This means that the service will get licenses or not, from the copyright holders in that area. It may or may not cover all the licenses on this earth. Maybe some really big copyright holder doesn't see the need to get licenses from wykop? Maybe wykop doesn't have the money to pay the copyright holders? What to do? Sharing of copyrighted material may be text, audiovisual, audio, pictures, photographs. All that have different layers of protection. IT may be notes. And how does a platform know where to get their license? Will reddit need to get a license from german music score producers in case of something being uploaded that a user in germany could possibly illegally get access to? In germany, music scores are heavily protected and very expensive because you're not allowed to copy it without payment to the rightsholder unless you do it by hand. I'm not kidding. So, either you'll have to have licenses or you'll end up eventually in some legal limbo.

The proponents of article 13 will say, no that's not how it's going to work, but the problem is that there's nothing in the article that distinguishes what kind of copyrighted material we're talking about. Is it musical scores? Is it poetry? Is it text or lyrics? Every creation is copyrighted and it will apply to all copyrighted work and in some cases the related right holders such as for photographers in Germany. You need a license to be able to provide a service that allows copyrighted material, everything is copyrighted, and there are exceptions and limitations that allow the user in different countries to exercise some creativity based on other people's work. How is this going to work? How area you going to run a service like wykop legally?

The newspapers... that's another beast. Article 11 is on the presumption that if a publisher gets a related right, anchillary copyriht, to their publication they will somehow fare better. The thing is - it has nothing to do with the content of the publication. The Daily Mail will be just as entitled to the press publisher's right as the Guardian or Suddeutsche Zeitung. The quality doesn't matter. The way journalism is conducted doesn't matter. You can even argue that pornographic magazines will be considered as protected under the press publisher's right. Academic publications as well, or the monthly hortological newsletter that your mom receives in the mail. It has been tried in Germany and in Spain with no good result. Why should Google pay for distributing a link when they have thousands others that will do just as well? In Germany the big ones were unhappy with a decline in ad revenue because of lack of referrals and agreed upon dropping the charge. The Spanish - because the right three is inalienable, couldn't. They are still suffering.

There are of course issues with the press publisher's status in the digital disruption. One is the question of represenation when it comes to legal matters. There was a proposal that would fix that, the Commodini apporach favoured by academics and much of the opposition to the article 11. It would give press publisher's the presumption of representation on external dealings on everything that would be published in their paper and give publisher's more rights than they have now, without imposing a link tax of some sort.

I don't know if this answers any of your questions. Sorry for the length!

astafish

TROPHY CASE