© 2018 Neil Turkewitz

Anarchy in the EU, YouTube Article 13 Remix (feat. Lyor Cohen & Susan Wojcicki)

by Neil Turkewitz

Over the course of the past few months, we have witnessed a dizzying spectacle of varying claims from YouTube concerning the proposals for copyright reform presently being considered in the EU. I do not intend to follow the bouncing ball, but I do want to address the one central claim made by YouTube even as it presents largely conflicting claims — that the proposed Directive will have dramatic and negative “unintended” effects on the creative community. And by “conflicting claims,” I am here referring to their arguments that either: (1) they already comply…or largely comply, with the mandate contained in Article 13, implying therefore that they (unlike other companies?) would not be particularly affected by the legislation; or (2) Article 13 will end the Internet as we know it and will result in a diminished capacity for YouTube to distribute works and to launch the careers of artists.

In case anyone hasn’t been following the debate surrounding Article 13 in the EU Copyright Directive, here’s my simplest explanation: it requires large commercial platforms who are in the business of content distribution (defined in the legislation) to license the works that they are distributing, and to take steps to guard against the distribution of works for which they are not licensed. While the use of filters is not explicitly mentioned (unlike an earlier version of the Article), it is anticipated by most parties that most covered platforms would discharge their obligations to prevent distribution of infringing materials through the use of available technologies — either bespoke like ContentID, or off the shelf from a supplier like AudibleMagic. The broader point is that tools to implement an obligation to take reasonable measures to prevent platforms from being used as engines for infringement are not hypothetical or under development — they are here and now and already widely employed. Of course, one would expect tools to become better refined both at detection and at avoiding false positives, and the best way for this hope to become a reality is to create incentives for platforms to develop and implement them. Article 13 provides such incentives.

Given the limited nature of this proposal, one might be forgiven for wondering what all the fuss is about. The answer, in a word, is “freedom.” YouTube/Google/Alphabet and the rest of the Silicon Valley crowd, have grown up (and gotten rich), with a vision of “freedom” drawn from the cyberlibertarian bible — John Perry Barlow’s 1996 Declaration of Independence of Cyberspace. They operate in a faith-based system…that any encroachment of governments/democracy into the functioning of the internet is to be resisted. Barlow set out the principles of internet governance, expressly rejecting the jurisdiction of mere nation states into the affairs of the Internet. And central to this notion of internet freedom under which governments lack jurisdiction is the notion that platforms must not bear responsibility for the content which they make available. This is the crucible upon which they will sacrifice anything, including the truth. It is the central premise of internet exceptionalism, and thus not something to be compromised.

Once this context is understood, it is easier to grasp YouTube’s positioning. While they talk about unintended consequences, the reality is that their central problem is with the intended consequences — or perhaps more accurately, with the modality (i.e. government mandate) employed to achieve such intended consequences. I don’t think YouTube is “anti-artist.” But they are definitely anti-regulation. They have enjoyed the freedom of wolves without regard to the safety of sheep, and are naturally opposed to the restraints imposed by fences. But our interdependence makes fences essential for the functioning of democratic societies. By eliminating fear, we create freedom and enable the pursuit of happiness. YouTube, like other members of the Silicon Valley fraternity, doesn’t like democratic institutions. Like Barlow, they subscribe to the view that “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”

Are we prepared to accept the proposition that self-regulation rather than the rule of law — made and imposed by “weary giants of flesh and steel,” is an acceptable framing for governance of the Internet? Maybe ten years ago more people would have answered in the affirmative. But we have now had enough experience under internet governance 1.0 to see the ramifications. It’s time for a course correction, and the Copyright Directive’s Article 13 is an important part of that journey.

A side note to YouTube in case you are reading this: You have recently stressed your support for the “principle” undergirding Article 13, and have said that you are only concerned with the unintended consequences such as an inability to distribute materials where you are not assured of the relevant rights ownership. You have called, after four years of negotiations and drafts, for a new compromise without outlining what that “compromise” might look like. Putting aside that the current text of Article 13 is already a compromise of a compromised proposal aimed at recapturing the terms of an older compromise (the original E-Commerce and Copyright Directives), I ask you to consider this. Every party supporting Article 13 cares only about achieving the intended consequences, and would have every reason to work with you in guarding against the unintended effects to which you have alluded. Those are compliance issues that can be addressed when member states move forward to implement their obligations. Work with the creative community to develop model implementing regs that achieve their intended purpose while guarding against unintended — and unwanted, interference with legitimate activities. You say you support the principle of Article 13. Then just support it and stop opposing measures that will help artists adapt and thrive in the digital environment. You say you care about that. Let’s see.