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You don't need to look for it, here's a link to the specific post I'm referring to: https://www.axel-voss-europa.de/2018/06/18/stellungnahme-zur-reform-des-urhe
by Kliment 8y ago
You don't need to look for it, here's a link to the specific post I'm referring to: https://www.axel-voss-europa.de/2018/06/18/stellungnahme-zur-reform-des-urheberrechts/ https://www.axel-voss-europa.de/2018/06/18/stellungnahme-zur... (it's in German, unfortunately)
Looks like the text has changed a bit since it was last in committee ("non-availability" changed to "prevent the availability") but in this case the issue is:
"[...] service providers [...] shall [...] take measures [...] to prevent the availability [...] of works or other subject-matter identified by rightholders [...]"
This is a bit technical but "shall" here has the legal effect of "are under obligation to". This is what makes responsibility for content a matter for the service provider, whereas previously the service provider was not required to prevent availability, only to take content down when requested. The current situation is that the USER is responsible for copyright infringement, and the service provider is not, for user-provided content, but the service provider has to respond to and act on takedown requests. This is what's being changed.
And "effective content recognition technologies" is what other people are referring to as "upload filters". This "content recognition technology" (which Voss specifies to be google's content id or something very like it) is given as an example, but there are no criteria here other than appropriateness and proportionality, which are not defined anywhere (is it proportional in terms of effort for the rightholder, the user, or the service provider?) and it's unclear what the alternative to said technology could be. Practically if it's your responsibility to prevent the availability of content you need to screen it before publication, either manually or automatically, and somehow allow rightholders to prevent its publication. This could mean comparing against a list of all copyrighted works, but that would cause difficulties in compiling such a list, keeping it up to date, and deciding how close a match it is. Voss, in his post, says that publishers will provide service providers with such lists, but the comparison operation itself is computationally heavy, especially for video, and also error-prone. It's also subject to abuse as anyone who claims to be a rightholder can effectively censor anyone else's content by putting it on said list. Youtube is the only implementation I'm aware of of such a technology, and their filter is terrible in terms of recognition, both in false positives and false negatives. The law as written effectively gives no alternatives to content recognition technology (are you going to manually check that everything everyone uploads is not on a large and growing list of works?). In the end, whatever implementation is picked, it will effectively prevent the publication of a large category of legitimate content.
Putting the matter of whether the whole thing is a good idea aside, it's also bad law, in that it's an unclear formulation of requirements that leaves a lot open. It leaves the question of what is appropriate and proportional to member states, and ultimately to the courts, because it doesn't specify any criteria. It gives a specific technical solution as an example but doesn't specify what makes it appropriate or not, making it, again, a matter for the courts to decide whether specific implementations are appropriate or not. It doesn't even specify what qualifies as "large amounts" of works.
- thraway180306 8y agoThank you for this very good summary. This is the most factual recount I've seen in numerous HN threads to date (which have been quite unhinged frankly). However I don't see how this forces content filtering. Service provider has to take responsibility for served content by having a process to help the complainant in the cleanup in contrast to just hiding behind users with a token “sorry for that, we'll now allow you to play hide and seek with them, sorry again”. Apart from shifting that burden, which I find reasonable, I see no difference to current mechanisms. In particular I see no preventing publication, and the rightholder has to actively take part to indicate/identify the matter. Beisde, the most recent text I see http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mode=XML&reference=A8-2018-0245&language=EN http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mo... is a wasteland. Articles 13a, 13b and 13c popped up into existence, article 13 got itself a point -1 (that's a minus one). No wonder the Parliament requested further work. Which is what it did contrary to misleading reporting of rejecting anything (in particular any of the articles specifically). Also, the text functions in a whole context of European law and reuses lots of notions. For example who is a commercial service provider seems to be lifted directly from a law being in force since the year 2000. Most European law is peppered with calls to scale and proportion you take issue with, and yet they exist and live on with little problem.
- Kliment 8y ago> In particular I see no preventing publication, and the rightholder has to actively take part to indicate/identify the matter. Sorry, that's inaccurate. The rightholder has to provide the service provider with a list of content and the service provider has to prevent anything on the list from becoming available. How do you propose to do this except by filtering content before publication? As soon as something that is infringing is published, the service provider is on the hook. So either you filter or you're in violation. As a proposal of a proportional way to do the same without opening the door to active censorship, there could be a content identification system that identifies content to the rightholder on upload, and then allows them to file a takedown request. This solves the problem of automated blocking of misidentified uploads, and leaves room for fair use by the mechanisms of existing takedown claim and counter-claim processes. But that's not what the law requires - it requires preventing availability.