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EU approves internet copyright law, including ‘link tax’ and ‘upload filter’ (theverge.com)
1737 points by daninet on Sept 12, 2018 | hide | past | favorite | 1009 comments

>However, those backing these provisions say the arguments above are the result of scaremongering by big US tech companies, eager to keep control of the web’s biggest platforms.

This is the most hilarious quote in the article. The only thing this will do is entrench massive players like Google and Facebook who already have these systems in place. I honestly cannot comprehend how anyone could support this law while having any understanding of how the internet works. Do these politicians really not understand the awful implications of these filtering systems for free speech and fair use? Just look at the abuses that already happen with the existing systems and now we have to spread this across the entire web, absolutely insane.

A truly sad day for the future of a free internet in Europe.

The stronger they push ridiculous laws like this the more it will force perfectly legitimate business to go underground. We will end up with all the problems of prohibition all over again.

> is intended to give publishers and papers a way to make money when companies like Google link to their stories

So Google should pay you when they send you more traffic? More traffic = more money. Most companies would be overjoyed if someone sends them free business. Google and countless others even provide tools like Adwords so you can monetize your site if you can't figure out how to do it yourself.

I wonder how long until companies outside of Europe decide it's easier just to block all traffic from Europe in protest.

This is a weakening of safe harbor provisions. This law makes it extremely difficult to have a platform with any kind of user generated content. As long as a company is taking reasonable measures to combat piracy, hate speech, etc, they need to be granted indemnity from the actions of rogue users.

> I wonder how long until companies outside of Europe decide it's easier just to block all traffic from Europe in protest.

Exactly this. I already hit error 451 when trying to read some local news in US when browsing from Europe (I don't remember name of the page now). This happened after GPDR came into effect. I can totally relate with companies who don't want to deal with legal mess related with GPDR and other nonsense from EU an prefer to just show the user error 451 page. I'm pretty sure VPN providers and huge companies like Google will benefit from this legislation.

European here. I can't view some major newspapers in the US such as the LA Times. Smallers ones like the Virginia Gazette and Daily Press are also verboten for me.

Many US newspapers now redirect to tronc.com for a standard disclaimer.

For example, the LA Times redirects to http://www.tronc.com/gdpr/latimes.com/, which says this.

Unfortunately, our website is currently unavailable in most European countries. We are engaged on the issue and committed to looking at options that support our full range of digital offerings to the EU market. We continue to identify technical compliance solutions that will provide all readers with our award-winning journalism.

This also happens to me. Evidently my FiOS IP looks European despite the fact that I live near NYC...

I just use outline.com/[url]. Also helps to circumvent paywalls.

An universal ban like this is exactly the needed cure

Ditto. I was in Europe for a month this summer, and a disturbingly large amount of pages were unavailable to me.

> I already hit error 451 when trying to read some local news in US when browsing from Europe

The Frederick News Post of Frederick, Maryland does this.


I foresee a change to the adwords/google analytics contract foregoing link tax etc. for your content to be used by google.

Fuck it, block Europe entirely. See how quickly the politicians there crawl back on their knees when they cant use Facebook to see their grandkids pictures.

Honestly I think the point they are trying to make is that they don’t need US-based behemots to control internet in Europe. Take Russia for example - they have vkontakte (if i spell it correctly) and politicians are all fine watching grandkids there; some probably dont even know what “facebook” is, as even POR doesnt speak English and constantly uses translators.

Whats happening in real i think is that EU realized it will never be able to chop Google or Facebook in pieces so they make it harder for these companies to exist on local market. At the end of the day free market still rules in Europe - if Facebook disappears their hole will be quickly filled in with 20 other social networks “made in European Union”.

Won't these “made in European Union” social networks have exactly the same problems as the Americans in complying with the regulations? In Russia and China, I believe they just openly discriminate against foreign companies.

You are aware that it's pretty much only American companies that are bitching about GPDR, right?

EU laws already cover EU companies as a matter of domicile. GPDR only applies the rules of service delivery already present in EU. EU service delivery rules say that a service is delivery point is considered the place where the service consumer is, not where the provider is domiciled.

We don't know how enforcement will look just yet, but at the end of the day, court-related decisions are made by humans and its hard to argue that Facebook version made in France will be less or equally looked upon in European court than Facebook made in Silicon Valley, U.S.A.

Quite, but this ruling seems to strengthen Facebook's hand not weaken it.

I'm not so sure. Take a look at Google and YouTube:

YouTube regularly blocks fair-use videos (remixes, criticism, etc) because the automated filter finds something that matches and can't recognize context.

Google regularly gets DMCA takedown requests for search results that go to official websites and YouTube ads/trailers.

My Facebook feed is covered with old acquaintances sharing news links and other such content.

It seems like it would be really easy for Facebook to run afoul of this, just due to others' incompetence.

what kind of perfectly legitimate business going underground do you foresee? I mean with prohibition the thing that went underground was addictive. I guess the argument has been made that facebook is addictive but I don't see them going underground - and frankly I don't see the next facebook competitor going 'underground' either (I just don't foresee one springing up)

Why should Google be able to profit off of others content without compensating them? Compulsory licenses are standard in the music industry, and in theory the same could work well for journalism. But the devil is in the details.

By that logic, should the phonebook have to pay people to include them? Should the travel pamphlet pay the restaurants it sends people to? Using snippets of the content to send people to the source is essential for online dialogue, not just for Google. Should we all have to pay for referring to an article in a forum?

Mark my words: if this were enforced, people and most companies would simply stop linking these sites. What I think will happen instead is that many websites would not want this kind of situation, so we will add a new clause to the robots.txt permitting linking and small snippets, and most websites would enable it rather than lose the link and search traffic. Then we'd be back where we started.

By the way, what happens when an European newspaper is hosted in US? What laws apply?

Your name is a matter of fact, thus not subject to copyright. It seems that you can't grasp the concept of copyrightable content.

If a website doesn't want its content to be summarized by Google couldn't they just block it in their robots.txt? From what I've seen that results in Google listing the page's title but with no description.

Maybe search engines could adopt some sort of standard that would allow pages to provide their desired description using meta tags if they don't want an automated summary. I could see a problem with pages using dishonest summaries, but perhaps that could be addressed by penalizing the page rank if the provided summary is too different than the summary that Google would have generated.

Why should Google continue to refer traffic to these sites for free without compensation?

Euh... Google makes billions of dollars referring traffic...

As do the pages. All this has been tested before in Germany with the Leistungsschutzrecht. Even before it was struck down by the courts it was more or less not active anymore. Google just stopped sending traffic to the pages of the German publishers. It took only a few days until Axel Springer & Co. came crawling back and made a deal with Google that they are allowed to link without compensation.

> Do these politicians really not understand the awful implications of these filtering systems for free speech and fair use?

They believe what their wealthy donors tell them to believe. It won't affect the well connected politicians in any measurable way, they'll still be wealthy. Meanwhile, independent organizations will suffer while the big players get all the sweet licensing deals. Regulations are ALWAYS about punishing the smaller firms to make the barrier to market entry prohibitively expensive.

It's also a form of control.

"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws."

> There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them.

I guess it’s true that some people in positions of power view themselves as rules over others, but I always thought that most people here in the western world held the view that the government exists to serve the people, not the other way around. Is this not the case?

There is plenty of things the government can spend their time on that is actually beneficial to its people, including:

- Regulating industry where necessary to protect employees and the public from harm; physical, economical, psychological, privacy, or otherwise.

- Negotiate with other countries so that mutually beneficial agreements are reached with regards to import and export of goods, as well as immigration, emigration and travel relating to the exchange of labor forces.

- Creating and enforcing laws for how the public is allowed to act so as not to cause harm. Things like laws that prohibiting DUI etc.

- Coming up with ways to protect and help people that get sick or have permanent illnesses or handicaps, to ensure that everyone can have quality of life.

That is what government should be about, not about control for the sake of control itself.

> but I always thought that most people here in the western world held the view that the government exists to serve the people, not the other way around. Is this not the case?

You can say that it exists to serve people but then you have to say which people exactly :) Because I think the willingness of the government to serve people is directly proportional to the depth of the pockets of the people in question.

But if this process like most things has diminishing returns, then wouldn't after a while government use up all the "easy wins", leaving only things to do that have a mix of good benefits and bad side effects. And once the best of these things were done, the remaining options would be more and more "bad side effects" and less and less "good benefits".

I appreciate the Dr. Ferris quote. It's pretty scary to see so much of Atlas became reality.

>The only power any government has is the power to crack down on criminals.

This just isn't true. The rest is garbage in, garbage out.

Such an unrelated libertarian quote that gets blindly posted and blindly upvoted. The EU is having a problem with the US companies running the show over their internet space. They don't intend to lock ordinary people up with this law. So you think it' be better for the companies to hold unlimited power and control people? That'd be much worse than moderate and sensible government regulations.

An apt quote indeed.

- Ayn Rand.

Does the EU have a problem with wealthy donors? I've heard this criticism levelled against US politicians and it's justified, but in this case I think it might just be sheer ignorance on the part of the EU legislators.

Not in the same way as in the US, and I don't think campaign contributions are a thing, at least not at the same level as in the US.

But there are many, many lobbyists active in the EU, and some of them have a surprising amount of influence over politicians. There has even been a case where two different parties, independently from each other, introduced the exact same bill, which had been written by a lobbyist.

What leverage do they use for lobbying, if campaign contributions are off the tables?

Bribery. I'm only half joking.

There's lots of dark international money slushing around out there that happens to make it into someone's wife's friend's company.

The art of lobbying doesn't have anything to do with contributions. They will typically donate equally to all viable candidates and sitting politicians to avoid becoming anyone's enemy.

The leverage they use is their relationships with other politicians to engage in vote trading.

They are still (ostensibly) the subject matter experts so politicians defer to them. This in itself isn’t a problem: they should defer to experts on complex matters. And often these experts are organised in industry interest groups. The problem arises when opposing view-points are downplayed.

In the current case this is done because the industry interest groups backing the legislation are predominantly European content rights owners. Whereas the interest groups opposing the legislation appear mostly organised by non-EU groups, and therefore thus are less of a concern for EU legislators, and potentially don’t have the same kind of immediate access to them.

The politicians are still very well connected with the industry. For example there was somebody who retired from the EU Commission a while ago and immediately went to the board of a company or something. The same shit as in the US just a bit less extreme.

Everywhere has this phenomenon in some guise, it's only the US that's self absorbed enough to think it is unique.

That's essentially a religious argument. Please provide evidence for your claim.

> That's essentially a religious argument.


Corporations exist

That's not much of an argument. Have a nice day.

Don’t know how common it is, but it has happened


That's outright bribery. Lobbying usually implies that it's legal.

Not quite as brazenly corrupt as it is in the US but it is still a huge problem.

That is certainly how they are often used in the America and the West today, but always seems a gross exaggeration. For example, regulations against child labor.

Note that Article 2 point 4(b) appears to entirely excludes from Article 13 rules organizations that are "small" or "micro," which, unless I am mistaken, means organizations that have less than 50 employees and €10m turnover or balance sheet value.

I imagine that Google Europe and Facebook Europe will just slice themselves up into a swarm of subsidiaries that each have less than 50 employees and less than €10m turnover.

Don't they already have a corporation in Ireland with almost no employees and no profits due to selling licensed software made by the parent company at cost?

They employ many thousands of people in Ireland. So many that they've driven up property prices and rents beyond what the natives can afford in Dublin. Many employees are immigrants, for language reasons (Customer support, etc,) and programmers from East Europe. They typically service Europe, Mid-East, African markets from Ireland and sometimes elsewhere too.Brian at Netsso, worried about link tax, etc.

> Do these politicians really not understand the awful implications of these filtering systems for free speech and fair use?

Some do, some don't. But in some ways that's not the motivation behind these laws.

There's a growing power struggle between Silicon Valley tech companies and government. Governments are losing control and they are lashing out. We're going to see a lot more of it in the future as governments lose more and more control.

Do these politicians really not understand the awful implications of these filtering systems for free speech and fair use?

I was doing a web development gig in a southern US state back in 1998, and the manager was completely of the mindset that you had to ask permission to link somewhere. For some people who don't get it, this is their natural mindset.

For other people, the whole point is to work against free speech and fair use, in order to control the public.

> The only thing this will do is entrench massive players like Google and Facebook who already have these systems in place.

Not exactly. Small and micro platforms are excluded from directive’s scope.

From legislation: In particular, small and micro enterprises as defined in Title I of the Annex to Commission Recommendation 2003/361/EC, should be expected to be subject to less burdensome obligations than larger service providers. Therefore, taking into account the state of the art and the availability of technologies and their costs, in specific cases it may not be proportionate to expect small and micro enterprises to apply preventive measures and that therefore in such cases these enterprises should only be expected to expeditiously remove specific unauthorised works and other subject matter upon notification by rightholders

As to what small is, Annex to Commission Recommendation 2003/361/EC Article 2.2 states:

Within the SME category, a small enterprise is defined as an enterprise which employs fewer than 50 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 10 million

And how is an SME with 10 million annual turnover (that's not profit, that's revenue before all the expenses are taken out) ever going to build a competing platform to e.g. Google or Facebook?

All this does is to put a token nod in place that we don't want to kill the SMEs outright but once they grow enough to be "dangerous", they better start paying or else. And if they can't, tough luck ...

> All this does is to put a token nod in place that we don't want to kill the SMEs outright but once they grow enough to be "dangerous", they better start paying or else. And if they can't, tough luck ...

No, this means that when you get over 10 mil euro, then you have enough money to pay for third party solution to content filtering. This costs couple of thousands a month and you are covered. You don't need to create your own ContentID platform to comply with the law.

Maybe they do understand.

People communicating very freely has presented many challenges to those same politicians.

Forcing liability makes a choke point, and better control.

At least China is completely overt about these things. That is not a statement of support, quite the opposite. It is a statement as to how weasely politicians are about these things. They want a lot more control, and people want a greater check on authority.

I can't help but notice strong self interest factors in play here.

It's simple, the EU wants it's own internet like China. No more filthy US internet with talk about free speech and fair use.

I see part of your argument, but the internet in the US is by no means full of free speech and fair use. The government has their hands on every major service provider and ISP and has used their power to compel companies to give information or censor data.

What's happening here is the EU is seeing every other major power lock down their internet, so why would they leave theirs open which would also allow foreign meddling?

Additionally the tech megacorps are trying to claim that they are open platforms and so shouldn't be responsible for user posted data while censoring and removing user posted data when it suits their economic means.

I'm a proponent of free speech, but the internet stopped being a bastion of free speech year ago. It's crazy to think that the EU was going to sit their and let companies do what they please, when those same companies we're already preventing users/EU citizens from doing so

Ah yes, the ol "but China is building a digital dystopia so we should too" argument. A classic.

Ah the old, let's imply your racist/afraid so you let american companies do as they please argument.

It's easy to be trite, but it doesn't change the fact that foreign companies and governments were taking advantage of the EU while simultaneously having a different set of rules at home for EU companies. I think the EU overreacted her, hut it's hardly surprising that they had some sort of response

The whole thread should be about the EU response and how negative it will be for most EU citizens but have less of an impact on the intended targets, aka large corporations who can afford to be compliant.

I think arguing over who has the most censored internet or the worst corporations is probably starting to veer off topic.

I think the point here is to understand why such a response occurred. So it's very much on topic. Nobody is denying that this is generally a bad thing for the commoners. But when you put it into perspective, what the US and China have been doing are also very bad. So this is nothing out of the ordinary really.

I agree. I don't even think that this is a good response by the EU. I was mostly commenting on how you shouldn't be surprised that they had _a_ response when other powers are locking down their internet and foreign companies we're running rough shod over EU laws and directives.

I think its all stemming from the same response as a portion of people who voted for Trump, or why the GPDR was enacted. The status quo was being abused by the major players and now they are going to do _something_ to shake up the system. Whether their approach is the right thing to do is up for debate

US has a huge surveillance (both govt and private) problem, but censorship? Can you give some examples?

Maybe "Napalm Girl" v Facebook, as an example how chilling effects and cultural differences can lead to an outcome which is perceived as censorship in Europe?

Simple: Are you able to find any ISIS-supporting website out in the open? What is the fundamental difference between this and the Chinese internet censorship for the sake of national security? I see only total hypocrisy and double standards here. Just admit that every country has their own set of laws regulating the internet and that the US is no different. Or are people so institutionalized that they don't even realize the countless censoring going on around the place?

1. Reddit on the topic of Donald Trump is an example.

2. Forcing social media firms to delete specific kinds of content is another (albeit controversial) example.

3. Redacting all info about Saudi involvement in the 9-11 reports is a great example of censorship under the pretext of national security.

4. The SESTA/FOSTA bills are a recent (but again somewhat controversial) example.

5. Plenty of movies have been censored. One can easily google examples of this.

6. Many works of music too. Just ask the rappers.

7. Forbidding swear words in public/recorded speech is/was a great example. Although it is also an example of self-censorship among Americans.

Classifying government documents is not censorship, since it's not government suppressing anyone's speech. It's strictly a transparency issue.

All of your other examples involve private censorship (which can be rephrased as "people and companies exercising their property rights and freedom of association"), not government censorship.

If you know about it, it's a felony to talk about it. That particular one was a huge omission that might have shifted national debate in a different direction, esp who U.S. would target in a war or sanction. I still remember the advertisements on the radio talking about how great Saudi Arabia is and how good buddies we are. Be a different picture if U.S. media said they were a huge sponsor of violent religion and terrorism with that part of 9/11 report highlighted for all to see.

Definitely an example of mandated censorship, corruption, and maybe some kind of conspiracy. Maybe protecting politicians' and Saudi's interests at everyone else's expense. Even if it kills a bunch of us. If that's how they use the power, they don't deserve to have it.


"4. The SESTA/FOSTA bills are a recent (but again somewhat controversial) example."

Where exactly is that private censorship?

Twitter is now banning promoted tweets with the legal term "illegal alien"

I'd upvote you, but my Verizon Ultra G5 Package does not allow for upvoting.

I'm so tired of the narrative that these highly-educated people vote on matters that they have no understanding of.

They know exactly what they're voting for, and say whatever is necessary to convince everyone that they're working to protect their constituents.

At least in the US, the vast majority of our politicians have graduated from prestigious law schools and passed the notoriously difficult BAR exam. Unless politicians on the other side of the pond are somehow primarily composed of MUCH dumber people, they're probably similarly intelligent.

They know what they're voting for, and they pretend to be totally ignorant to the "scary new world" of tech so they get a free pass on voting in dumb shit laws like this.

Does the link tax only apply to the interenet? what about scientific papers? are you required to pay when you reference other material?

In the summary of the original draft I read it was exempt. Haven't read the amended version but I suspect it still is in there somewhere.

So maybe Google and Facebook were lobbying the EU politicians?

> The only thing this will do is entrench massive players like Google and Facebook


It will also speed up development of a new web which is impossible to regulate. So I rejoice. When they block entire services for days, I cry in joy. A 10 days blackout is what we need...

This idea is called accelerationism: https://en.wikipedia.org/wiki/Accelerationism

or a tiny js file that anyone can add to header, that upon document loaded replaces ALL images, videos, text in quotes and anchors with black stripes with red "451 unavailable for legal reasons" spans. Upon clicking this should open in a new tab a website with information on what is this about and what can be done about it.

Pied Piper.

>I honestly cannot comprehend how anyone could support this law while having any understanding of how the internet works.

Who do you think has their arm up the politicians' ass and making them talk?

> I honestly cannot comprehend how anyone could support this law while having any understanding of how the internet works.

These are the same politicians that brought us the law that forces every website to ask EU visitors permission to store cookies with a big fat modal dialog, so I don't think you need to worry that people who any understanding of how the internet works supported this law. Imagine all the time wasted on those modal dialogs and add up the total cost in human lives. I bet none of them have any clue that the functionality to block cookies is built right into your web browser.

The funny part is that they're doing this copyright law out of jealousy of Silicon valley and they don't realise that these types of regulations and attitudes are the very reason why Silicon valley is not located in the EU, and why the next Silicon valley won't be either, and that this law will make it harder for new companies to compete with Youtube and Facebook.

> These are the same politicians that brought us the law that forces every website to ask EU visitors permission to store cookies with a big fat modal dialog

No it doesn't. For example


Does not have any such dialog

And to preempt the pointless but inevitable thread to follow: it also wouldn't need the dialog if it were based in the EU.

How do I know? I don't. Maybe it does track users. But the website was used as a counter example to "forces every website", and a hypothetical news.ycombinator.eu which doesn't track users or keep any PII on them (conceivable by any reasonable person) is acceptable as a counter argument.

The point stands. GDPR doesn't force anything. It just prevents you from tracking people silently.

> And to preempt the pointless but inevitable thread to follow: it also wouldn't need the dialog if it were based in the EU.

Exactly. The only thing that every EU-based website should have is a data protection statement. The one on my blog is short and stout:

> No system under my control records any personal data of users of this website.

I also have an imprint because German law requires it. The regulation is clearly aimed at businesses, for private websites it just makes doxxing easy since I'm required to put my post address on there. (I considered getting a PO box, but going to the post office to empty it is pretty tedious.)

http://www.bogons.net/ -- a UK based ISP with no modal dialog.

Imagine all the time wasted on those modal dialogs and add up the total cost in human lives.

GMAFB, nobody is dying because they're being asked to consent or refuse cookie tracking. If you are worried about that then why haven't I see you complaining about the modal dialogs and umpteen other other impositions inflicted upon users by marketing departments?

There are nearly 4 billion internet users. 1 billion seconds is 31.7 years. Clicking on those useless dialogs easily adds up to a whole human lifetime every day.

I think jules means to consider how many millions of dollars and euros and hours and hours were spent developing the modals for thousands of different websites and how that money might have been better spent.

Perhaps, but you could say the same about 99% of marketing appeals, which are far more profuse, and many of which are actively deceptive.

My main objection to it is that it doesn't at all solve the problem. Everyone clicks "accept", people still don't know what cookies (etc.) are, it was yet another silly regulation that harms small players and entrenches megacorps, and overall makes the internet less fun and more corporate junk.

Real regulations about this stuff require real technical expertise, and it's going to be at least a generation before that expertise exists in the political class. The alternative is to let the tech lobby write the regulations, but booooooooo.

Sorry, that argument begs the question. I am well aware of what cookies are and think about the content of what I'm agreeing to, and often decline invitations from sites I don't trust. You're assuming that's what is convenient for one party in the transaction must be optimal for all parties, which is irrational.

In fairness, you're a Hacker News reader. I don't think we should be making regulations and defending them with "sure only experts really know what these things are, but that's fine". Regulations shouldn't rely on people being experts, they should keep people secure even when they're not experts. Regulations more in this vein are things like building regulations, electrical standards, hospital regulations, etc. I know basically nothing about this stuff, and if I get shocked because of bad wiring no electrician anywhere will say, "well you should've been an expert electrician, your fault buddy". But that's exactly what happens in the non-security dev community right now. "Well you should've been an expert in public key cryptography, your fault buddy". It's just not realistic.

> Do these politicians really not understand the awful implications of these filtering systems for free speech and fair use?

They do, and free speech and fair use are important issues to them.

> They do, and free speech and fair use are important issues to them.

The German law that is related to what US citizens call "copyright law" (Urheberrechtsgesetz) (note that I use this careful formulation, since Urheberrecht and copyright are based on different ideas) has no concept of "fair use".

Also, traditionally, in Germany, there is culturally a different understanding of what US citizens call "free speech" (freie Meinungsäußerung). "Freie Meinungsäußerung", for example, does not include defamation criticism or libel. So free speech in the US sense is no important issue for these politicians, because this concept is simply not ingrained in German culture.

To all the US free speech advocates: why is posting a copyrighted file in the internet not considered free speech and thus copyright law is to be abolished?

IANAL, but the legal answer for why free speech and copyright aren't mutually exclusive is that copyright is an explicitly listed power of congress in the constitution:

The Congress shall have Power To... ...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;


Congress shall make no law... ...abridging the freedom of speech, or of the press;

So it's implied (by the constitution not being tautological) that there's a balance between the right of the people (free speech) and an power of congress (to implement copyright). Note also that that defamation/libel are not protected by the first amendment, but the theshold for proving it is high - information has to be known to be false to the speaker, and inflict an actual injury. For public figures and politicians, the speaker has to have "actual malice". These are not often proven. For example, "sell more newspapers" would not rise to the level of "actual malice".

Note that the power grant to Congress to establish copyright was in the original Constitution, while freedom of speech is protected by the First Amendment, which - as the name says - is an amendment, which, by definition, changes the existing powers.

The legal argument for that, rather, is that all rights are implicitly limited, and that, depending on how important the right in question is, how small the limitation is in scope, and how important the social objective that the limitation is intended to enable, it can be constitutional - with courts being the arbiters of what's important and what's small. The fact that the colonies had slander and libel laws on the book even as they passed the Constitution is often cited as a justification for this point of view.

I think it's a case of parallel construction. The original First Amendment was not a problem to libel and slander because it simply didn't apply to the states at all, only the federal government, same as all others until they were incorporated via 14A. It does, however, clearly conflict with copyright, and there's nothing in the text of the Constitution that resolves that conflict one way or the other, or even sets clear guidelines on how you'd do so. So what we have in practice is mostly judicial precedent - and most of it is constructed out of necessity to make things work (i.e. "we've always done it this way", or "bad things happen if we don't do it this way"). So you have a patchwork of concepts like fair use, creative expression etc.

The most convincing argument that I have heard is that freedom of speech is about freedom to express ideas, not freedom to use specific words to express those ideas. Since copyright only applies to the latter, it's not an infringement. I'm not sure I fully buy it, but it does highlight an important distinction. Stuff like fair use stems from that, to enable you to express an idea that's criticism of someone else's words.

Here's an interesting read on the subject:


The meaning of free speech has changed dramatically over the past century. This is why things can seem so contradictory.

Like so much of Anglo-American law, Free Speech and Freedom of the Press is an application of the fundamental concept of Due Process of law. One facet of Due Process says that the government cannot single out individuals, groups, or specific types of behaviors unless there's a compelling reason and the targeting is necessary. All laws should be generally applicable and targeted to addressing identifiable harms, on the one hand, or achieving some broader policy objective on the other.

A.V. Dicey's 19th-century treatise on the British Constitution said that there was no need for an independent doctrine of Free Speech or Freedom of the Press because British law never had (at least, not in the then-recent history) and never would attempt to suppress speech as speech, or to single out newspapers as such. Libel, defamation, copyright and other so-called limitations on Free Speech aren't limitations at all because Free Speech isn't about freedom from the consequences of speech or prohibiting the government from remedying ill effects of speech or restricting them from activities that may incidentally limit speech. Those so-called limitations apply equally to everybody, so how could they operate to suppress particular ideas, opinions, or methods of communication? Likewise, Copyright doesn't favor anyone or any idea in particular, so it's not injurious to Free Speech, either.

So why did the Americans feel the need to singularly identify Free Speech and Freedom of the Press? Because continental Europe, and France in particular, had a history of laws that specifically and more strictly regulated the press, and regulated or prohibited particular opinions and ideas. Singling out Free Speech and Freedom of the Press was a way to explicitly reject the continental European approach. Remember, many colonists expressed the view that the enumeration of these and other rights in the Federal and State constitutions was, technically speaking, unnecessary because they were, strictly speaking, already protected by traditional legal doctrines and by the structures of government. The Bill of Rights was a boots & suspenders approach to constitutional law making.

None of this is to say that Parliament didn't pass laws that had the effect of limiting free speech. But how they did so mattered. Note that Free Speech and Freedom of the Press rights were also expressly put into many State constitutions. For well over a hundred years States regularly passed laws that heavily suppressed speech, but they were almost always upheld by State courts because the laws were expressed in terms of general applicability. In modern terminology they were "facially neutral", and there didn't exist a theory of judicial power that permitted courts to look beyond the face of the laws. (At least, not a theory that was widely held or that was thought useful to apply to speech issues.) And courts were far more credulous of State arguments that their laws were trying to prevent violence and mobs.

It wouldn't be until the 20th century that legal interpretations began to shift. Justices Brandeis and then Holmes propounded a novel (even radical) theory of Free Speech which demanded stricter scrutiny of laws and their effect on speech. It's adoption and application by SCOTUS has unfolded over the past nearly 100 years. This process continues today; scrutiny of laws effecting speech has become stricter and stricter every decade, even every year it seems. Moreover, what constitutes speech has expanded dramatically.

Make no mistake: Free Speech as understood in America today, and as defined by modern jurisprudence, is absolutely not an originalist interpretation of the constitution. If you like your modern Free Speech rights (as I do), don't thank the Founders; thank Brandeis and Holmes and their judicial activism.

I'm curious about "boots & suspenders", searching for that gives a lot of porn results! Is this really an idiom in the US, or should it be "belt & braces"? (braces are what you call suspenders, what we call suspenders is the waist garment that secures stockings for the ladies)

I think the US idiom is belt & suspenders, not boots.

As much as this may annoy Angela Merkel, Germany and the EU are not the same thing. We're talking about EU legislation, and translating and relating that to German, French, British, Italian, Romanian, etc. law will always result in awkward translations that are not quite spot on. We are not lawyers, this isn't a court, and we can afford a bit of imprecision to get the point across with finitely many words, can't we?

Germany has "Urheberrecht" and "Verwertungsrecht", neither of which is exactly copyright, even though that's the most practical translation of either. German law may not have fair use, but it does have §51 UrHG "Zitate", which serves the same purpose, at least in the context of reporting on news articles.

> So free speech in the US sense is no important issue for these politicians

The Eurocrats do not want free speech to establish itself in the EU. That's very important to them.

German law is relevant here because this is a translation of a law that is already on the books in Germany and Spain onto the EU level. The legal restriction of linking without license and using very short text snippets has been part of German law since 2013, and in fact was an initiative by the same political parties that introduced this. It has been through the German courts numerous times and the courts cannot agree on a reasonable interpretation because of how the law is written. So in a sense this is Germany and Spain exporting their local legislation to the EU level. The way the law works in Germany is very much relevant as it informed this proposal. The core concept of Leistungsschutz is to create a new form of copyright, that applies specifically to short snippets that were legal to use under the "normal" Urheberrecht laws.

> Germany has "Urheberrecht" and "Verwertungsrecht", neither of which is exactly copyright, even though that's the most practical translation of either. German law may not have fair use, but it does have §51 UrHG "Zitate", which serves the same purpose, at least in the context of reporting on news articles.

There is indeed an exception for quotes (Zitate) and parodies (for the latter cf. https://www.ferner-alsdorf.de/urheberrecht__urheberrecht-zur... since it is not written down explicitly in the law). But, for example, memes fall into neither category and are thus typically illegal under German law, but legal under US copyright because of fair use.

Fair use isn't strictly defined in US Code as well... It's mostly through precedent.

We do have free speech in the EU, claming otherwise would indicate that the European countries are no democracies. While the extent of free speech might vary from country to country, denying it is there goes way to far.

Sure, there are limitations to it, e.g. denying the Holocaust or using Nazi symbols in Germany, and with regards to defamation. But otherwise just about any opinion can be voiced freely. Thid doesn't mean that thios particular EU law is any good, it just screams big media corporation lobbyism all over it. And yes, this implies some future potential limitations to free speech,l either by technically limiting the reech of smaller players (regardless of what the law states) and by giving governmants a tool to keep things of the internet. Especially the last part is troubling.

What you are describing is a merged set of other named rights, such as Freedom of Expression and Freedom of Association, etc. The US (as far as I am aware) is the only country in the world with the Right to Free Speech. Free being the keyword here, "unconstrained".

Free Speech doesn't mean having the right to say bad things about the government. It means having the right to say anything you want.

You don't have the right to say anything you want in the US either. Free speech is full of exceptions in US law as well, starting with the most obvious example of "shouting fire in a crowded theater" [1] (though the original decision the phrase refers to had nothing to do with someone shouting "fire"...) In other words: speech that would be likely to incite imminent lawless action.

[1] https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the...

The U.S. has many exceptions to free speech. Libel, slander, "fighting words" (see Chaplinsky v. N.H.), "imminent lawless action"(Brandenburg v. Ohio), obscenity (Miller v. California), etc. These have all been interpreted in varying ways throughout history, with the general trend being towards more protected speech (compare Brandenburg/"imminent lawless action" to Schenck v. U.S./"clear and present danger"). Additionally, the government can restrict speech further when acting in a special capacity, such as the FCC's regulation of the speech on the airwaves and public schools' regulation of free speech in classrooms.

It's delusional to think that the U.S. has unrestricted free speech, or to think that "free" implies completely "unconstrained".

>Free Speech doesn't mean having the right to say bad things about the government. It means having the right to say anything you want.

This is a strawman. No EU country restricts free speech to speech criticizing the government.

Well, at least in Germany you can say all kinds of negative Things aboiut the government you want as long as you are not personally insulting anybody. In France as well as far as I know. Wether it is part of freedom of Speech or Freedom of Expression, well I'm no constitutional lawyer.

Please elaborate?

The impact on free speech and fair use is not a side effect of this new law, it's its purpose.

Maybe it's time technologists stopped assuming they're the cleverest persons in the room and rectified their ignorance of law and economics before assuming they're in the right about everything. I'm not a fan of onerous copyright legislation but simply asserting that 'information wants to be free' is stating an opinion, not some scientific law. Hackers and developers are just as subject to the Dunning-Kreuger effect as anyone else.

My my, its certainly easy to tell people off isn't it?

...but perhaps if instead you offered a compelling argument to the counter?

The EFF has laid out a lot of reasons this is problematic, and they are very familiar with the situation.

I have offered many such arguments if you would like to peruse my comment history. I've been debating these issued for about 25 years now, and have several friends who work at the EFF.

When someone cites the Dunning-Krueger effect, I always wonder if they are a professional psychologist.

As terrible as this is, I am actually even more shocked by this proposal:


Having one hour to remove offending content, draconian fines and no, absolutely no exceptions for small content providers would, I think, end the internet as we know it in Europe. I see no way to host any kind of content under such jurisdiction and surely all non European content providers would just block the EU rather then take on a task that even giants like facebook and google can barely manage.

Wow, this gets crazier and crazier. So either any content provider should be able to determine within one hour whether every comment is "terrorist" or not (with guidelines as clear as "information which is used to incite and glorify the commission of terrorist offences") and remove it, or, more likely, they'd auto-remove every comment that anybody marked as "terrorist" and let people complain about it later. Coupled with law enforcement interface (which would probably mean notifying the law enforcement about somebody posting "terrorist content" - that's only make sense?) this paints a very scary picture for the future of online free speech in EU.

Obviously that's impossible and it'll be easier to just not have comments, which is exactly what websites will do, and exactly what the EU wants. The EU is sick and tired of people sharing their opinions and pointing out how stupid and draconian and bereaucratic the EU can be, so they did this to shut it all down under the guise of protecting copyright or somesuch.

>The EU is sick and tired of people sharing their opinions

Why the EU specifically? I'd say, most states and groups of states have this attitude nowadays.

Is it perhaps possible that this comment is about the EU specifically because the EU specifically is the subject of this particular conversation? After all, this is about a law the EU specifically is choosing to pursue, rather than some broader worldwide trend.

Commenting narrowly on just the EU implies nothing, in any way, shape, form, or manner, about other entities.

From what I read on this specific proposal, it's not entirely draconian and has some benefits to the user, since the process also implements transparency requirements and complaint mechanisms.

As far as the one-hour-rule goes; if I get an email about taking down content at 01:00AM, then I will naturally be unable to respond for atleast another 5 hours, German courts atleast agree that for such things, it counts when you are first aware of the illegal/infringing content, even if it's weeks after (though you already have an obligation to operate a contact through which you can be quickly reached when you operate in germany atleast, IIRC this proposal will introduce that EU-wide which is good IMO).

> German courts at least agree that for such things

This implies that you are going to have to go to court because you got an email at 1am and didn't reply right away...in order to fight off potentially serious fines. Whether it's accurate or not it's still very expensive to prove it's inaccuracy (in time alone, not including financially and stress).

This has very serious consequences for small and even medium businesses.

>This implies that you are going to have to go to court

No it doesn't, it means that if you get dragged to court because you got the email at 1AM and you were asleep, then you're not guilty of anything.

No judge will put up a fine for that.

> if you get dragged to court because you got the email at 1AM and you were asleep, then you're not guilty of anything

Getting dragged to court is disruptive, unsettling and expensive.

You'd think, right? But it's really not a big issue with a properly structured court and justice system.

Most of EU has judges that are interested in a just resolution, not just being "an independent arbiter" of two researchers.

And the other party will be found guilty of disrupting your business by having you get into court for complaints without legal grounds.

How often you hear about people being prosecuted for falsely flagging content as offensive online? How often you hear about prosecutions about false copyright infringement notifications? The latter happens only very rarely in cases of blatant abuse, usually coupled with massive fraud and other crimes (never happens to automatic systems big IP holders use, they just write it off as innocent error in 100% of the cases), the former happens never.

That happens under the DMCA, prosecution under existing EU law and the new art11 and art13 wouldn't change much. Notice&Takedown does allow me to review any requests unlike the DMCA and Art13 requires human review in case of disputes. To my knowledge I can ignore entities that send me lots of useless Notices about third party content without legal consequence, I could even get a restraining order.

> I could even get a restraining order

What? No you can’t. Is this entire thread disclaimed by your “sometimes I lie” line in your profile description?

> the other party will be found guilty of disrupting your business

This all sounds quite lucrative for the lawyers and notaries. It remains disruptive, unsettling and expensive, not to mention unnecessary, for everyone else. Depending on which of the EU’s 28 member states’ courts one finds oneself dragged into, what you’re proposing could be years of distraction.

>It remains disruptive, unsettling and expensive, not to mention unnecessary

Nobody will do this, no sane legal department signs this off or approves of such behavior. Doing otherwise is a great way to incinerate their legal licenses. There are fines for behavior like that.

The best outcome for the suing party of such a scenario is a 5 minute court room appearance in which the judge slaps you with a restraining order and closes the case.

This has literally never been an escalating problem in european courtrooms to my experience because judges don't like that behavior and laws exist to prevent it.

> There are fines for behavior like that.

In theory, there are. In practice, the abuse of both copyright and offensive content notifications is rampant and almost never punished. You have to get to real hardcore crime on massive scale before judicial system starts noticing, and even then it can take years and a lot of effort to get it to do anything. In most cases, such abuse is completely unpunished or gets slap on the wrist.

Because the only system that sites implement is the DMCA, which is largely compatible with Notice&Takedown in the EU but N&T has much softer requirements and Art13 now requires human review and a founded response from the copyright holder.

> the other party will be found guilty of disrupting your business by having you get into court for complaints without legal grounds.

Dubious. The other lawyer will claim they believed you had read the complaint and therefore that they were acting in good faith, and will see no punishment at all.

On what grounds would they be able to believe that I have read that complaint? Such things need proof in court.

Burden of proof goes the other way here. This is why (one of the reasons) bogus DMCA complaints are never prosecuted. You need to prove that they believed you hadn't read the complaint and knowingly went after you anyway. We only persecute people for using the legal system maliciously, not accidentally incorrectly.

Assuming you can even find another party. What would stop anyone from creating a bunch of accounts under TOR and reporting thousands of links per hour? Good luck dealing with that.

Then I'll just ignore reports from Tor-based email domains? I don't think my email provider even accepts .onion for emails.

Or I just ban Tor users from creating reports, I'm not forced to enable abuse, if they have an actual complaint they can use their real internet connection. End of story.

If there is only one possible outcome, then that outcome should be clearly encoded in the law. The whole purpose of the court system is to provide interpretation when a law is vague - intentionally or not.

Remember that the law in europe tends to not function like the american law, including how courts work. The law is almost always vague and courts will have to interpret it.

Right - and that's what would drive US based companies just to shut down access to EU versus trying to comply. The uncertainty may not be worth it for small companies just trying to gauge demand.

I shed tears for the growth-oriented silicon valley startups that won't be able to compete in the EU market, I really do.

Because the other party magically knows your sleep schedule? What if you're abroad or work third shift?

They don't have to, they can simply wait a sufficient amount of time, usually a workday before they can enact further measures such as a C&D, which usually requires atleast 3 days before it can be considered received, after which you can take it to court.

If you are on holiday at that time, the court will in almost all cases instruct the other party to wait until you return at which point you can respond to the C&D.

> No it doesn't

> No judge will put up a fine for that.

You're contradicting yourself...you have to go to court to get charges dropped by a judge.

No I'm not. No sane lawyer will even recommend dragging you to court for that because the judge will like fine the suer and find the sued party not guilty. No legal department I know would stand behind such a decision, it would be absolutely stupid to drag anyone to court. And most likely the Judge would even have the suing party pay for your expenses and damages incurred by such charges.

They don't need to drag you to court. They fine you using the new EU law, then you refuse to pay and you essentially decide to go to court instead of paying. Even if the company decides to drop the complaint in response either way you have to put a significant amount of effort to get to that point. Merely because you got an email at night.

This could happen 100x (or even thousands) for any mid-sized content platform. Most of these things are automated these days.

Besides there's no guarantee the parties will automatically act rationally and drop the claims of infringement before threatening court, merely because you claim you were sleeping. And you specifically said a judge won't pursue it, but even that is a maybe.

>Merely because you got an email at night.

As mentioned multiple times, if they did this the judge would simply deny the entire fine and suit and they'd have to pay you damages and they'd likely receive a cease&desist order from the court.

You must inform parties of violations and allow for adequate time to react to them. Sending an email is already a nono for legal notices as there is no guarantee that the other party even received the mail properly.

The only way to properly and legally verifiably send them is to have a write-in mail which the receiver must sign with their signature before receiving. For everything else you might as well send money in an envelope ahead of time.

This is not a mere fact this is established procedure.

>Besides there's no guarantee the parties will automatically act rationally and drop the claims of infringement before threatening court, merely because you claim you were sleeping.

That's not what I've been saying, I've been saying that the infringement still needs to be dealt with but you can obviously not react when you are asleep.

Are you talking about this from experience? or just plain (outside-EU) theory?

In practice though, most of EU gov-burocracy, incl. courts, prosecutors, statisticians, taxation, food-control, cultural/educational, whoever, esp. in recently-joined former-this-or-that countries, exist mostly in order to make work to each other = i.e. support/keep the whole system. Sadly, that is the reality.

And yes, they may charge u of (inexisting) offense (and even without sending u email), if that has any chance of putting oil in the cogwheels for some years. No matter what, the state does not lose.. it just somebody's nerves and taxpayers money wasted, but who cares.

>Are you talking about this from experience?


>it just somebody's nerves and taxpayers money wasted, but who cares.

Courts in the area I live in tend to dislike such behavior a lot.

How about we just don't allow this law to be enacted in the first place and save ourselves all this trouble?

I don't say we should have this law but I also say it's less bad than some people make it out to be.

Because those "most" think that the justice system works like on TV... American style.

That mostly doesn't operate like that, even in US.

How did they enact such a fine on you without taking you to court? Is the EU crazily different in this regard than the US?

A C&D in Germany is the usual way to resolve disputes, in which case you get a letter + bill + C&D form to sign, you can either comply and sign the C&D and pay the fine or ignore it or just sign the C&D but not pay the bill, in which case the other party can drop it, send more letters or take it to court.

If you take it to court and the court finds the complaint invalid then they can (and usually do) force the party that sent the C&D to pay your expenses and damages (ie, lost business due to you having to turn up to court) and usually a restraining order with hefty fines on it.

Atleast in germany it is expected that disputes are resolved via C&D and letter correspondence, court is a last resort.

To my knowledge, the court system in other countries varies but is not that different...

I think you're overestimating your legal analysis skills a bit here.

You might still get a letter from some law office to tell you about the violation and a hefty bill for providing this service. I suggest familiarizing yourself with the concept of "abmahnung" in Germany. Quite a racket.

I'm quite familiar with this concept considering I have gotten a total of 2 Abmahnungen, one of which I paid because I did violate a rule and the other dropped after I threatened to take it to court. You'd be surprised how few of the senders are willing to actually go to court if the outcome is not 100% clear because any case could result in a ruling against them and shut down their business.

are you seriously arguing for having to interact with the justice system for not responding to an email within an hour as anything but totally wrong? jesus christ, where am i?

No I'm not and I think I've made that fairly clear in this thread.

They will never stop asking for more power to police the use of their imaginary property. They'd push for mandatory deletion of copies inside people's brains if that was possible.

Sounds like the web without user content... Web 1.0? So much for free speech.

Wasn't Web 1.0 only user content?

No, it was owner content. Of course, for some sites, like my personal Geocities page, the owner frequently was the sole user too, but the concepts of "one entity who owns the site builds the content" and "third parties visiting the site build the content" are different.

Indeed. Of course it was limited to a very small and weird collection of “users”.

> it was limited to a very small and weird collection of “users”

Agreed. It was a much better place.

Well, I was referring to the definition of the web 2.0. Wikipedia says:

Web 2.0, [...] refers to World Wide Web websites that emphasize user-generated content [...][1]

So while in the beginning most users were also authors, there was a time between when there were a lot of websites which served content, but didn't let users add theirs. At that time guestbooks were to only place you could add content to someone elses website. To some degree message boards where the start of the Web 2.0.

[1]: https://en.wikipedia.org/wiki/Web_2.0

With a few exceptions, mostly self hosted

glances at Facebook timeline well... maybe that won't be so bad afterall.

>all non European content providers would just block the EU rather then take on a task that even giants like facebook and google can barely manage.

One way to ensure your citizen don't read them "foreign propaganda websites".

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