Against all the odds, but with the support of nearly a million Europeans
, MEPs voted earlier this month to reject
the EU's proposed copyright reform--including controversial proposals to create a new "snippet" right for news publishers, and mandatory copyright filters for sites that published user uploaded content.
The change was testimony to how powerful and fast-moving Net activists can be. Four weeks ago, few knew that these crazy provisions were even being considered. By the June 20th vote,
Internet experts were weighing in
, and wider conversations
were starting on sites like Reddit.
The result was a vote on July 5th of all MEPS, which ended in a 318 against 278 victory in favour of withdrawing the Parliament's support for the languages. Now all MEPs will have a chance in September to submit new amendments and vote on a final
text -- or reject the directive entirely.
While re-opening the text was a surprising set-back for Article 13 and 11, the battle isn't over: the language to be discussed on in September will be based on
the original proposal
by the European Commission, from two years ago -- which included the first versions of the copyright filters, and snippet rights. German MEP Axel Voss's controversial modifications will also be included in the debate, and there may well be a flood
of other proposals, good and bad, from the rest of the European Parliament.
There's still sizeable support for the original text: Article 11 and 13's loudest proponents, led by Voss, persuaded many MEPs to support them by arguing that these new powers would restore the balance between American tech giants and Europe's
newspaper and creative industries -- or "close the value gap", as their arguments have it.
But using mandatory algorithmic censors and new intellectual property rights to restore balance is like Darth Vader bringing balance to the Force: the fight may involve a handful of brawling big players, but it's everybody else who would have to
deal with the painful consequences.
That's why it remains so vital for MEPs to hear voices that represent the wider public interest. Librarians
, and redditors, everyone from small Internet businesses and celebrity Youtubers, spoke up in a way that was impossible for the Parliament to ignore. The same Net-savvy MEPs and activists that wrote and fought for the GDPR put their names to
challenge the idea that these laws would rein back American tech companies. Wikipedians stood up and were counted: seven independent, European-language encyclopedias consensed to
on the day of the vote. European alternatives to Google, Facebook and Twitter argued that this would set back their cause
. And European artists
spoke up that the EU shouldn't be setting up censorship and ridiculous link rights in their name.
To make sure the right amendments pass in September, we need to keep that conversation going. Read on to find out what you can do, and who you should be speaking to.
Who Spoke Up In The European Parliament?
As we noted last week, the decision to challenge the JURI committee's language on Article 13 and 11 last week was not automatic -- a minimum of 78 MEPs needed to petition for it to be put to the vote. Here's
of those MEPs who actively stepped forward to stop the bill. Also heavily involved was Julia Reda, the Pirate Party MEP who worked so hard on making the rest of the proposed directive so positive for copyright reform, and then re-dedicated herself
to stopping the worst excesses of the JURI language, and Marietje Schaake
, the Parliament's foremost advocate for human rights online.
These are the core of the opposition to Article 13 and 11. A look at that list, and the
final list of votes
on July 5th, shows that the proposals have opponents in every corner of Europe's political map. It also shows that every MEP who voted for Article 13 and 11, has someone close to them politically who knows why it's wrong.
What happens now?
In the next few weeks, those deep in the minutiae of the Copyright directive will be crafting amendments for MEPs to vote on in September. The tentative schedule is that the amendments are accepted until Wednesday September 5th, with a vote at
12:00 Central European Time on Wednesday September 12th.
The European Parliament has a fine tradition of producing a rich supply of amendments (the GDPR had thousands). We'll need to coalesce support around a few key fixes that will keep the directive free of censorship filters and snippet rights
language, and replace them with something less harmful to the wider Net.
Julia Reda already proposed amendments. And one of Voss' strongest critics in the latest vote was Catherine Stihler, the Scottish MEP who had created and passed consumer-friendly directive language in her committee, which Voss ignored. (Here's her
before the final vote.)
While we wait for those amendments to appear, the next step is to keep the pressure on MEPs to remember what's at stake -- no mandatory copyright filters, and no new ancillary rights on snippets of text.
In particular, if you talk to your MEP
, it's important to convey how you feel these proposals will affect you . MEPs are hearing from giant tech and media companies. But they are only just beginning to hear from a broader camp: the people of the Internet.
Litigation can always take twists and turns, but when EFF filed a lawsuit against Universal Music Group in 2007 on behalf of Stephanie Lenz, few would have anticipated it would be ten years until the case was finally resolved. But
, at last, it is. Along the way, Lenz v. Universal contributed to strengthening fair use law, bringing nationwide attention to the issues of copyright and fair use in new digital movie-making and sharing technologies.
It all started when Lenz posted a YouTube video
of her then-toddler-aged son dancing while Prince's song Let's Go Crazy played in the background, and Universal used copyright claims to get the link disabled. We brought the
hoping to get some clarity from the courts on a simple but important issue: can a rightsholder use the Digital Millennium Copyright Act to take down an obvious fair use, without consequence?
Congress designed the DMCA
to give rightsholders, service providers, and users relatively precise rules of the road for policing online copyright infringement. The center of the scheme is the notice and takedown process. In exchange for substantial protection from liability
for the actions of their users, service providers must promptly take offline content on their platforms that has been identified as infringing, as well as several other prescribed steps. Copyright owners, for their part, are given an expedited,
extra-judicial procedure for obtaining redress against alleged infringement, paired with explicit statutory guidance regarding the process for doing so, and provisions designed to deter and ameliorate abuse of that process.
Without Section 512, the risk of crippling liability for the acts of users would have prevented the emergence of most of the social media outlets we use today. Instead, the Internet has become the most revolutionary platform for the creation and
dissemination of speech that the world has ever known.
But Congress also knew that Section 512's powerful incentives could result also in lawful material being censored from the Internet, without prior judicial scrutiny--much less advance notice to the person who posted the material--or an opportunity
to contest the removal. To inhibit abuse, Congress made sure that the DMCA included a series of checks and balances, including Section 512(f), which gives users the ability to hold rightsholders accountable if they send a DMCA notice in bad faith.
In this case, Universal Music Group claimed to have a good faith belief that Ms. Lenz's video of her child dancing to a short segment of barely-audible music infringed copyright. Yet the undisputed facts showed Universal never considered whether
Ms. Lenz's use was lawful under the fair use doctrine. If it had done so, it could not reasonably have concluded her use was infringing. On behalf of Stephanie Lenz, EFF argued that this was a misrepresentation in violation of Section 512(f).
In response, Universal argued that rightsholders have no obligation to consider fair use at all. The U.S. Court of Appeals for the Ninth Circuit rejected
that argument, correctly holding that the DMCA requires a rightsholder to consider whether the uses she targets in a DMCA notice are actually lawful under the fair use doctrine. However, the court also held that a rightsholder's determination on
that question passes muster as long as she subjectively believes it to be true. This leads to a virtually incoherent result: a rightsholder must consider fair use, but has no incentive to actually learn what such a consideration should entail.
After all, if she doesn't know what the fair use factors are, she can't be held liable for not applying them thoughtfully.
We were disappointed in that part of the ruling, but it came with a big silver lining: the court also held that fair use is not simply a narrow defense copyright but an affirmative public right. For decades, rightsholders and scholars had
debated the issue, with many preferring to construe fair use as narrowly as possible. Thanks to the Lenz decision, courts will be more likely to think of fair use, correctly, as a crucial vehicle for achieving the real purpose of copyright
law: to promote the public interest in creativity and innovation. And rightsholders are on notice: they must at least consider fair use before sending a takedown notice.
Lenz and Universal filed petitions requesting
that the Supreme Court review the Ninth Circuit's ruling. The Supreme Court denied both petitions. This meant that the case returned to the district court for trial on the question of whether Universal's takedown was a misrepresentation under the
Ninth Circuit's subjective standard. Rather than go to trial, the parties have agreed to a settlement.
Lenz v. Universal helped make some great law on fair use and also played a role in leading to better takedown processes at Universal. EFF congratulates Stephanie Lenz for fighting the good fight, and we thank our co-counsel at
Keker, Van Nest & Peters LLP
and Kwun Bhansali Lazarus LLP
for being our partners through this long journey.
The European Parliament's Committee on Legal Affairs (JURI) has officially approved Articles 11 and 13 of a Digital Single
Market (DSM) copyright proposal, mandating censorship machines and a link tax.
Articles 11 and 13 of the Directive of the European Parliament and of the Council on Copyright in the Digital Single Market have been the subject of considerable campaigning from pro-copyleft groups including the Open Rights Group and Electronic
Frontier Foundation of late.
Article 11, as per the final version of the proposal, discusses the implementation of a link tax - the requirement that any site citing third-party materials do so in a way that adheres to the exemptions and restrictions of a total of 28 separate
copyright laws or pays for a licence to use and link to the material;
Article 13, meanwhile, requires any site which allows users to post text, sound, program code, still or moving images, or any other work which can be copyrighted to automatically scan all such uploads against a database of copyright works - a
database which they will be required to pay to access.
Both Article 11 and Article 13 won't become official legislation until passed by the entire European Parliament in a plenary vote. There's no definite timetable for when such a vote might take place, but it would likely happen sometime between
December of this year and the first half of 2019.