Deconstructing the internet pioneers’ statement against EU Article 13

The European Parliament has voted for a new copyright directive that changes the rules of the internet. Dozens of prominent internet pioneers and thinkers, including Web inventor Tim-Berners-Lee, issued a statement condemning the directive. The spirit of the letter is on target, but the execution is a muddle.

The European Union Directive on Copyright in the Digital Single Market won’t become law until the EU finalizes it and member states decide how to enforce it. But if it goes into practice, it will be far-reaching. Article 13 of the directive requires large platforms like YouTube to filter uploaded content for copyright before posting, as opposed to the current policy, which is to take the content down if copyright holders object. Article 11 prevents platforms like Google from including substantial snippets of content they link to (like the small amounts of text you see after performing a Google search). Both are intended to benefit copyright holders, but could reduce the fluid and interconnected quality that makes the internet so quick to navigate, even though it’s made up of sites controlled by millions of different owners.

The internet pioneers’ letter about Article 13 could be a lot more direct

The letter to European Parliament President Antonio Tajani, titled “Article 13 of the EU Copyright Directive Threatens the Internet,” is signed by internet pioneer Vint Cerf, Tim Berners-Lee, Wikipedia founder Jimmy Wales, and dozens of others including Mitch Kapor and Bob Frankston. Let’s take a close look at the letter, along with commentary and a translation by me. I’ve added italic to show where the letter uses passive voice.

Antonio Tajani MEP
President of the European Parliament
antonio.tajani@europarl.europa.eu

12 June 2018 Mr President,

Article 13 of the EU Copyright Directive Threatens the Internet

As a group of the Internet’s original architects and pioneers and their successors, we write to you as a matter of urgency about an imminent threat to the future of this global network.

Commentary: Writers should get to the point quickly and use descriptive titles. The letter succeeds on both counts.

Translation: Dear European Union — you’re about to screw up the internet. Don’t do it.

The European Commission’s proposal for Article 13 of the proposed Directive for Copyright in the Digital Single Market Directive was well-intended. 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.

Commentary: This obvious sop to the good intentions of the parliament accomplishes little. Get to the facts please.

Translation: Uploading content to free, broadly available platforms has made the internet a democratic medium. Once you require platforms to vet content, sharing will slow down. It’s not worth it.

Europe has been served well by the balanced liability model established under the Ecommerce Directive, under which those who upload content to the Internet bear the principal responsibility for its legality, while platforms are responsible to take action to remove such content once its illegality has been brought to their attention. By inverting this liability model and essentially making platforms directly responsible for ensuring the legality of content in the first instance, the business models and investments of platforms large and small will be impacted. The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.

Commentary: The passive language here is revealing — it softens and undercuts the statement here. Notice how different this looks when we rewrite it for active voice.

Translation: Right now, if you upload copyrighted content, that’s your problem. All the platforms must do is remove it after the copyright owner complains. This has served Europe well. If the platforms are responsible for making sure content is legal, they’ll have to spend money on it. This will probably screw up the internet.

In particular, 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 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. Indeed, if Article 13 had been in place when Internet’s core protocols and applications were developed, it is unlikely that it would exist today as we know it.

Commentary: Do you know what SMEs are? They’re small to medium enterprises — but why use the jargon? The piece about the cost is redundant with the previous paragraph, and the reliability guarantee is passive. Finally, I don’t think the EU cares about what would have happened if these policies were in place when the internet was created, but cares only about the current situation.

Translation: Google, Facebook, and Twitter can afford to pay for filtering, but the tiny and faltering alternatives in Europe won’t. You’re trying to legislate technology that doesn’t actually work yet. So we appeal to your European pride: fight the American internet oligarchy!

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.

Translation: We like uploading stuff, like code and pictures. (Ever heard of memes?) Please don’t slow that down to comfort established media.

Scholars also doubt the legality of Article 13; for example, the Max Planck Institute for Innovation and Competition has written that “obliging certain platforms to apply technology that identifies and filters all the data of each of its users before the upload on the publicly available services is contrary to Article 15 of the InfoSoc Directive as well as the European Charter of Fundamental Rights.”

Commentary: The Max Planck institute writes long and twisted sentences.

Translation: We know lawyers. We will fight you.

One of the particularly problematic provisions of Article 13 as originally proposed by the Commission, and in the compromise texts put forward by the Council and the Parliament, is that none of these versions of the text would provide either clarity or consistency in their attempts to define which Internet platforms would be required to comply with the provision, and which may be exempt. The resulting business uncertainty will drive online platforms out of Europe and impede them from providing services to European consumers.

Commentary: Regulations are inherently subject to judgment. This statement about business uncertainty is in contradiction to the earlier statements about how American platforms will remain and dominate.

Translation: The law as written is confusing. Big internet businesses don’t like confusion. Little ones like disruption, but it isn’t clear if that’s possible under this rule.

We support the consideration of measures that would improve the ability for creators to receive fair remuneration for the use of their works online. But we cannot support Article 13, which would mandate Internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks. For the sake of the Internet’s future, we urge you to vote for the deletion of this proposal.

Translation: Don’t legislate technology solutions. It never works.

Yours sincerely

Vint Cerf, Internet Pioneer
Tim Berners-Lee, Inventor of the World Wide Web
et. al.

Article 13 is a mess. But this letter isn’t the best way to fight it.

I agree with these writers that adding automated copyright restrictions is a poor way to regulate the internet. Historically, regulation moves slowly and technology moves quickly. As a result, regulation has trouble keeping up with technology change.

But this letter is muddled. It can’t decide if it’s for copyright owners or against them. It can’t decide if the cost will drive platforms away or make them dominant. Perhaps that ambiguity is inevitable with a letter signed by so many authors, but I believe it’s ineffective.

A better solution would have been to show historical precedent for why such legislation doesn’t work, and suggest some alternative solutions.

There’s still time to do that. I hope Sir Tim and his colleagues make the effort to save the internet that’s become such an essential part of our lives.