The internet is a bastion of free speech. You can say whatever you want about anything on any site that allows comments and post any content you like on sites that allow you to share music, code, words, video, and so on. That may be changing. The European Union (EU) Article 13 was just passed by the EU’s Legal Affairs (JURI) Committee. If it makes it into law, freedom of speech on the net will be gagged.
In the United States, Section 230 of the Communications Decency Act, part of the Telecommunications Act of 1996 helps guarantee free speech on the internet with its “safe harbor” provision. This reads: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
That’s vital because it gives online platforms legal protection from most of the content posted by their users. That means you can say anything you want — from comments putting you in the running as the world’s most obnoxious troll to word of wisdom — and the site, whether it’s ZDNet, Reddit, YouTube, what have you, can’t be held responsible.
Under Article 13, it’s an entirely different world. Now, instead of letting you be free to say whatever you want or share whatever content you desire, every website has to check your every word, sound, video, programming code, image, or video to see if it’s a copyright violation. In short, everything.
Article 13’s “solution” is to insist all sites filter your submissions against a database of copyrighted works. This technology, in theory, will identify both near and exact matches. These sites must also enable copyright owners to update this database.
Think about this for a moment. You want to write a snappy response to an article so you type it in … and then in a few hours — if it passes copyright muster — it will finally appear. Unless it includes a copyrighted quote in which case it will go missing in action.
Google and Facebook could build software that might handle this. Maybe. Google’s YouTube Content ID tries and often fails to do it and it just handles YouTube videos. Everyone else? I don’t think so.
As the Electronic Frontier Foundation (EFF) points out, even for “those platforms that do establish upload filtering, users will find that their contributions — including video, audio, text, and even source code — will be monitored and potentially blocked if the automated system detects what it believes to be a copyright infringement. Inevitably, mistakes will happen. There is no way for an automated system to reliably determine when the use of a copyright work falls within a copyright limitation or exception under European law, such as quotation or parody.”
The experts agree: Article 13 is dreadful. Vint Cerf, creator of TCP/IP, the internet’s fundamental protocol; Tim Berners-Lee, the web’s inventor; Wikipedia co-founder Jimmy Wales; Internet Archive founder Brewster Kahle; cryptography expert Bruce Schneier; and dozens of other of the crème de la crème of the internet, think Article 13 is awful.
In a letter to the EU, they wrote: “As creators ourselves, we share the concern that there should be a fair distribution of revenues from the online use of copyright works, that benefits creators, publishers, and platforms alike. But Article 13 is not the right way to achieve this. By requiring internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.”
Exactly. Besides, let’s get practical. “Far from only affecting large American internet platforms (who can well afford the costs of compliance), the burden of Article 13 will fall most heavily on their competitors, including European startups and SMEs,” the letter states. “The cost of putting in place the necessary automatic filtering technologies will be expensive and burdensome, and yet those technologies have still not developed to a point where their reliability can be guaranteed.”
In addition, the “impact of Article 13 would also fall heavily on ordinary users of internet platforms — not only those who upload music or video (frequently in reliance upon copyright limitations and exceptions, that Article 13 ignores), but even those who contribute photos, text, or computer code to open collaboration platforms such as Wikipedia and GitHub.”
Computer code? Yes. Software is made up of copyrighted code. GitHub worries Article 13 will mean it will have to filter code with “Content detection tools [that] are flawed (generate false positives, don’t fit all kinds of content) and overly burdensome.”
It’s not just major works, it can be the smallest thing. Just how petty can this get? Very.
Take memes for example. Who doesn’t like at least some of them? But, Jim Killock, executive director of the UK’s Open Rights Group, warned the BBC: “Article 13 will create a ‘Robo-copyright’ regime, where machines zap anything they identify as breaking copyright rules … while machines can spot duplicate uploads of Beyoncé songs, they can’t spot parodies, understand memes that use copyright images, or make any kind of cultural judgement about what creative people are doing.” Exactly.
Just copying a tweet can be troublesome. For example, you can now be nailed for infringing copyright just for embedding a tweet in a web page in the United States.
Besides fearing EU regulators fining them, website companies must also fear copyright trolls. These are companies, such as the now defunct Righthaven, which create no content of their own, but shake down companies if they — or you on their site — publish copyrighted material. The copyright troll business model is to target hundreds or thousands of defendants with offers of quick settlements priced just low enough that it is less expensive for the defendant to pay rather than to defend the claim, regardless of the merits of the claim.
Some of you may be asking, “What does this have to do with me? I live in the States.” Oh my friend, we don’t live in a world where walls block thoughts. Anything you contribute to, even if it’s just a LOLcat joke, can be seen as easily by people in Berlin as your next-door neighbor. That means websites of any size must respect — and fear — Article 13.
So, if Article 13 passes, what do you think will happen? I’m betting that while the biggest of companies will set up filtering systems that will inspect your every word before it’s permitted to see the light of day, most will simply not let you post anything at all.
It’s cheapest that way. Freedom of speech, you see, under Article 13, will be too expensive for most to defend it.