Copyright gets entangled
FRABJOUS JOY. The world of copyright law and policy is getting complicated again. We have the probability of a deeply discouraging court ruling; and of another major and necessary upheaval in EU law.
First, the court. The Court of Justice of the European Union (CJEU) rules on whether member states' laws meet their oblications under EU law. Courts in Germany referred to the CJEU two cases: in one music producer Frank Peterson sued YouTube over uploading works in which he has rights; in the other database publisher Elsevier sued a company called Cyando AG, saying it was responsible for breaches of copyright in journal articles uploaded to its file-hosting platform called Uploaded.
The way the CJEU works is that after arguments have been made an official of the court called the Advocate-General AG's makes a recommendation for a ruling, which the judges consider - and usually adopt. The Freelance usually says that copyright law isn't as complicated as some lawyers make out - but whoa! The AG's recommendation is... daunting. Even Eleonora Rosati's summary on the excellent IPKat blog is headache-inducing.
In short, the AG recommends that neither YouTube nor Cyando can be held liable for copyright infringements committed by people who upload material to their services. This is an almost fundamentalist interpretation of the provisions of the EU E-commerce Directive. This was passed in 2000.
When discussions on this Directive opened the world-wide web was in its infancy - in order to publish material on it, for example, you needed to write HTML code. Those discussions were swayed by a simple and superficially appealing argument. Internet service providers were envisaged as the providers of wires and cables. To hold them liable for the material conveyed over those "pipes" was presented as being equivalent to holding your local postwoman or postman responsible for delivering a libellous book to your neighbour. Clearly, this would be disastrous for freedom of expression. As the Freelance recalls it, prominent among the lobbyists for immunity for digital service providers were those paid by Nokia, a company that has moved on.
We draw two points from the AG's recommendation. First, it hinges on a declaration that YouTube is a quite distinct form of enterprise from PirateBay. It has to do this in order to recommend departing from an earlier CJEU judgment in which the court followed a different AG's eloquent recommendation PirateBay was indeed liable for its users' actions. On IPKat Eleonora Rosati describes this as "regressive". And it is not at all clear to us that the AG has actually made an argument that YouTube is different from PirateBay.
Secondly, a subtler part of the document argues that YouTube does not in any way resemble a publisher. That depends in part on the status of "recommended videos". The AG suggests that "to the extent that the recommendations are generated automatically based on the videos previously viewed by the user in question and have as their sole purpose facilitating that user's access to similar videos, they do not reflect the operator's decision to communicate a given work to a public."
This seems to us to put too much emphasis on what YouTube calls the feature. It does not simply "recommend" videos for the discerning user (one such as the AG) to select. Many, many people simply let YouTube play one video after another as its "machine learning" system dictates: they consume it passively as they might watch TV. (We're off to look for research on what proportion of users do this.)
Aside from the copyright implications, this is central to understanding the role of services such as YouTube in promoting racism and conspiracy theories such as vaccine denial and the wilder reaches of Qanon. In this context, it is worth noting that for users of Facebook the "recommendation algorithm" is the service: what they see on their screen is entirely what Facebook decides to serve up. In both cases, the goal of the algorithm is to keep their eyes glued to the screen - and the adverts on it - for as long as possible: and extensive research shows that the way they do that is to maximise shock, awe and disgust - emotions that feed extremism and even genocide.
Monopolies and monopsonies
This question of the social and political effects of YouTube and Facebook is one of the motivations for the EU Commissiona asking how they can further be regulated. Another is the realisation that existing laws against "abuse of a dominant position" don't capture the effects that make Google the search engine, YouTube the video service. Another may be the realisation that - as the AG's opinion in YouTube and Cyando clearly implies - the wins for authors in the recent Directive may not materialise unless the question of digital platform's legal liability is addressed head-on.
14 September 2020
The EFJ and IFJ have presented arguments on how the EU needs to act to defend journalists and journalism in the age of huge and powerful digital service corporations. Probably the EU is the only body with the weight and the will to take them on. Also, Freelance editor Mike Holderness, who is also Chair of the EFJ Authors' Rights Expert Group, has made a personal submnission to the Commission. Among the points it makes are:
- Twenty years ago the European Parliament passed the "E-commerce directive", designed to encourage the development of new services. It declared that they should not be held legally liable for "content", any more than your local postwoman is liable if she delivers a libellous book to your neighbour.
- Since then, we have seen the rise to power of services such as Google and Facebook, which often act more like publishers than the Post Office. This has important consequences, imcluding effects on freedom of expression and the spread of disinformation, and the destruction of much of the economic base for professional, ethical journalism.
- Also, the digital services need to share out the profits they make from the "sharing" - the unauthorised use - of authors' work, including journalistic writers and photographers.
- Last year's Directive on Copyright in the Digital Single Market made a start on this, but it is clear that it won't succeed unless the free pass that the digital services have had to spread misinformation and steal genuine, expensively-produced information is withdrawn.
More to come...