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EU Council of Ministers Approves Copyright Directive (torrentfreak.com)
97 points by amima 8 days ago | hide | past | web | favorite | 72 comments





This is a good illustration of EU legislative structure:

> The legislation was voted through by a majority of EU ministers just a few minutes ago, despite opposition from Italy, Luxembourg, Netherlands, Poland, Finland, and Sweden.

Nonetheless, those countries will have no choice but to implement national laws to comply with the EU directive: https://en.wikipedia.org/wiki/Francovich_v_Italy

> Francovich v Italy (1991) C-6/90 was a decision of the European Court of Justice which established that European Union member states could be liable to pay compensation to individuals who suffered a loss by reason of the member state's failure to transpose an EU directive into national law. This principle is sometimes known as the principle of state liability or "the rule in Francovich" in European Union law.

Indeed, EU members lack the sovereignty even of U.S. states. The US federal government can pass laws directly binding on the citizens of every state, but cannot compel state governments to pass and enforce particular laws. The EU can do both (the former through regulations, the latter through directives). In the US, the inability of the federal government to hijack state legislative and enforcement machinery to its own ends is seen as an important measure of accountability—you can always blame state legislators for state laws. (You see this in the areas of drug and immigration law. Sanctuary cities can exist because the federal government cannot force state organs to enforce federal law. Likewise, legalized marijuana at the state level.)


Well, it's more like an illustration of a voting/decision group where majority, but not unanimity, is required for the decision to be taken. And where the decision taken is binding for everyone.

The mechanism in question was and is known by all participant countries that joined the EU.

Not perfect, but is there a better system at reach?

There's a country I heard, overseas, where it can happen that someone is elected president although they didn't get the majority of the people's vote.


> The mechanism in question was and is known by all participant countries that joined the EU.

That is just not true. The mechanism was changed drastically by Lisbon treaty - no more vetos, qualified majority now overrules the rest. Needless to say, 'no' was not accepted as an answer to European Constitution/Lisbon treaty, as reminded by referendums in France, Netherlands and Ireland. This is the true nature of the EU.


Not saying it is perfect, once more.

The referendums were a disgrace, true. So were they because referendums are often organised, and seen, and used, as votes of confidence for a given government, and not as expressions for the very question.

Find any country, political structure that is pure, of anything.

But still. Here we are. More than 70 years at peace on a continent, something not seen for several centuries before that. The EU project, and structure, and growth, and maturity, is central to that peace.

How factually worse, exactly, have been any EU member, since they joined the Union? How factually better have they been as well?

Pretending that EU members would be better off without the union is a plain, undocumented, geopolitically hostile, lie.


That's got to be an object lesson in blinkered dogma.

> So were they because referendums are often organised, and seen, and used, as votes of confidence for a given government

From the grab-bag of possible explanations...

> But still. Here we are. More than 70 years at peace on a continent

Also an amazing co-incidence that NATO has been in existence for 70 years. Containing three nuclear powers, it doesn't take a leap of imagination that it was a greater deterrent than whatever you had in mind.

How has your version worked over 70 years? The EU has only been in existence since 1994. Prior to that, it existed in a smaller, trade-only form as the EEC. I thought the 'butter mountain' and 'wine lake' were figures of speech. So were they physical defences, something like an obstacle course to deter the Russians? /s


Do you think the states of the United States would be better off as individual states with a pure economic and military agreement (i.e NATO + a kind of EEC) ?

I think most people would be at least be happier under that arrangement. We burn enormous amounts of time in the US fighting with each other over basic differences in culture and attitude, and the resulting compromises satisfy no one.

Would you agree to build walls/borders as well?

Of course NATO is part of the equation... or was, since now your president is basically tearing it down. Guess why?

(edit for that: I'll answer for you: Trump is sowing chaos because that's how his kind grabs more control and more riches.)

Btw, there are 2 nuclear powers in the EU as of today.


> More than 70 years at peace on a continent, something not seen for several centuries before that. The EU project, and structure, and growth, and maturity, is central to that peace.

I don't really buy that. There were a number of years of peace before the EU even existed; crediting the EU with the peace therefore seems a bit revisionist.


EU is a thing, and is a dynamics too. What we have today is the consequence of what's been put into action right after WW2.

What about Yugoslavia and Ukraine? Also calling the cold war "peace" is a bit stretch.

Edit: additionally just because countries are "better off" does not mean they should happily agree to every new power grab by Brussels. Some ex-soviet republics were also better off than before they "joined".


What are you talking about? Yugoslavia and Ukraine are not part of the EU and they are not that well off either. What ex-soviet republics were better off before they joined the EU? Most of them were still recovering from communism.

As soon as the EU falls apart you will see everyone feeling cheated or oppressed by its neighbour for all kind of reasons not to mention territorial reclaims. War will be inevitable. The big powers will profit most(Russia, China and the US).


The parent said "peace on the continent". Last I checked, Ukraine and Yugoslavia are part of Europe.

For "better off" - apologies for being unclear - I didn't mean joining the EU. I was making the comparison that the same was true for countries that were (forcefully) joined into the Soviet union in mid 20th century.


Setting aside what will surely be a torrent of what-abouts, the parent's point about the US federal (lack-of-)authority seems like an example of a better system.

(First what-about: the election system is related to but distinct from the ability of the Federal gov to force state-level laws)


> The US federal government can pass laws directly binding on the citizens of every state, but cannot compel state governments to pass and enforce particular laws.

Only in theory.

See the National Minimum Drinking Age Act[0] for an example of when the Federal Government forced states to enforce a age 21 drinking minimum. When an entity controls the purse strings limits on their power are largely theoretical.

PS - Yes it is constitutional[1]

[0] https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_...

[1] https://en.wikipedia.org/wiki/South_Dakota_v._Dole


The National Minimum Drinking Age Act didn't "force states" to do anything. It provided that the federal government would withhold 10% of highway funds if states did not enact a drinking age of 21--it had to use a carrot/stick approach precisely because the federal government could not directly compel states to legislate.

That distinction, moreover, is not "theoretical"--it is a limit on federal power that has real teeth. In NFIB v. Sebelius, a majority of the Supreme Court (7-2, on that point) held that ACA's Medicaid expansion was "unconstitutionally coercive" because it would allow the federal government to withdraw all of a state's Medicaid funding if the state did not expand Medicaid eligibility under state law.

Gay marriage, drugs, and immigration are other significant areas where states have used their prerogatives to depart from and refuse to enforce federal law.


>Indeed, EU members lack the sovereignty even of U.S. states.

Unlike the US, EU member states are free to leave if they wish. See also: Brexit.


I feel like "you're free to leave" is not a good response to most issues with government and member states. It misses the point of the question if the law or structure in question is appropriate.

I get what you mean by a difference between a US state and the EU... but that difference doesn't address the issue.


Do you mean that the federal laws can be ignored by individual US states? Was DMCA "accepted" by all the states of America?

This is called sovereignity ala EU. EU countries are sovereign - to pass laws they do not want or agree with, under the threat of sanctions by the EU.

It sounds like what the other person cited indicates that that your statement is not entirely accurate.

I fear this may end up being the end of full Youtube access for Europeans. Youtube must either have a license with all possible rights holders, which is everybody, or content uploaded by Europeans must be checked by impossible filters, and I suppose content uploaded from elsewhere must be checked by those same filters before it can be shown to Europeans. So basically we're only going to get corporate content from Youtube.

A small consolation is that it may also kill Facebook in the EU, giving more room for smaller, open source, distributed social networks like Diaspora, Mastodon and Friendica. If it's true that this only holds for profit-driven sites, as someone claimed in an earlier discussion about this.


YouTube will be fine. It's big enough to implement enough tech that they can say they're doing what they can. In fact, they've probably had enough there for years.

Most content hosting startups are likely to be too small to need to implement any tech at all, so they're fine as well for now.

The problem is that now it's practically impossible for a startup to scale up. The route to an exit for any startup hosting content and serving the EU is effectively closed, which is going to make raising impossible, which in turn will make developing a solution impossible. This law cements YouTube as the market leader in a way that no one can really challenge. They've been handed a de facto monopoly. That's the problem.


Queue a slew of off the shelf rights management systems start-ups can bolt into their platforms as they scale. VC uncertainty probably stems from unclear law, not from technical challenges.

I too think there will be a lot of people producing whitelabel contentId clones. I mean, it's a potentially good business. But it won't be easy to do, as people will still need to convince copyright holders to play with it, much like it took decades for something like spotify to emerge.

Anyway: the law will stay unclear for years, won't it?

This is a directive, which means each EU country will need to implement it through a local law, and then they will still be free to implement it the way they want it (unlike GDPR, which is a regulation).


Copyright holders want this to work (as a repeal of the directive would be a far, far worse scenario), and will likely be more than willing to work with anyone who aims to make it work.

well yeah, but do they want it bad enough that I can go to all of the licensers and tell them "give me all your content for a small cost so I can fingerprint it and build a content identifier" ?

Old businesses have shown time and again they are unable to understand what's good for them if it moves from the way it was always done (some, at least).


I won't be surprised that we will find out in five years that Google and Facebook supported this law (under the table)

I am almost certain this is true. But hopefully it will backfire and decentralized alternatives will become more popular than these big monopolies.

> YouTube will be fine. It's big enough to implement enough tech that they can say they're doing what they can. In fact, they've probably had enough there for years.

Youtube can't even proactively moderate its platform now, its always moving after a media outlet writes a hit piece. Even when they do react their solutions are ham-fisted at best.

I'm starting to think these companies (youtube/facebook ect) are simply too large and traditional economies of scale don't actually work in the way they do for non-tech businesses.


The tech industry has long treated scaling as an inherent good and positive goal. And that's money backed, for sure. But I increasingly believe scale is causing problems that technology can't fix. Communities too large to be moderated by groups of humans become problematic, and I'd even argue networks and platforms at large scale become easy to exploit and manipulate from a security standpoint as well.

A small curated app store has quality apps published by humans. A giant app store trends towards being full of malware. The larger a platform becomes, the easier it is taken advantage of by bad actors.

nkkollaw 8 days ago [flagged]

Can Europeans avoid their content being ~~censored~~ filtered by using a VPN?

Can Europeans avoid their content being ~~censored~~ filtered by using a VPN?

I suspect content hosting companies will let anyone upload anything but only make the content visible to people in countries that allow it. A VPN won't help. The directive isn't saying "An American uploaded this so it's fine for everyone to see." It's saying "The original version of this is owned by someone else so no one in the EU can watch this derivative work." Who uploaded it doesn't actually matter.


Thank you.

How will the EU enforce that? Will they obscure any website that don't implement filters?


The website will be liable for the copyright infringement as if they would have uploaded the material themselves if they do not implement a good filter whatever that is.

It seems as though they would have a hard time doing this. If the website is based in America, they can't take it down. They probably can't extradite either; the rule is typically that it has to be illegal in both nations.

How can they enforce this?


If the website is not hosted in the EU then the law will have no effect.

I think many websites will simply move to other parts of the world. That is what I would do anyway.


That's what I figured. The worst part about it is that it won't affect shady cyberlockers whose business models are rather suspect and often not known to tax authorities, but legitimate sites that do business in the EU will be impacted.

No, pretending to be from somewhere else will not change politics or the filtering for all Europeans.

OK, so any content that wasn't filtered isn't allowed in the EU?

For instance, if in India an Indian uploads a video to a website that doesn't implement EU-compliant filters, that video will get blocked?

How will the EU enforce that? Will they obscure any website that don't implement filters?

I haven't followed the whole thing closely, sorry--but any help in understanding would be appreciated.


You've got multiple questions going on here:

- How internally hosted content is enforced

- How externally hosted content is enforced

- Would a VPN would help

.

Internally operated content: Fines to the company distributing the content (e.g. Google operates in the EU and if YouTube was not found to be compliant they would be fined).

Externally operated content: Not really sure, the EU doesn't have a "great firewall".

Would a VPN help: Using a VPN to upload your video to YouTube as if you were Canadian will not change that YouTube cannot show illegal content in the EU. The question posed by the law isn't "who uploaded it" it's "what is in it". Using a VPN to view videos as if you were Canadian would naturally allow you to see things blocked in the EU.


It will circumvent the issue - with a chance of VPNs being banned in the future if this method becomes mainstream - but it won't change politics and will force the issue on everyone not savvy enough to find a way around it.

YouTube will probably be fine, like others have commented.

I'm more concerned about geo blocking by smaller sites. Especially GitHub. It will probably also mean the end of EU access to Reddit.

Basically every smaller site that allows upload of user content will face 1) dealing with legal uncertainty 2) buy content screening packages from Google, Microsoft etc. or 3) give usage statistics a hard look and implement geo blocking.


Reddit and YouTube both do not want the increased liability, and hence want you to think of this like it is the end of the world, because it may cost them money. It's unlikely either business would actually exit the EU over it, because that's a lot of money and users to leave off the table. In addition, exiting the EU makes space in the EU market for new competitors to arise... who might become large enough to venture out into the global stage.

I think it's unlikely either site would leave the EU, but if it did, I'd be glad for the increased competition it might give rise to.


As you can see from Facebook's stock price, Facebook will not be killed by this directive. https://finance.yahoo.com/quote/FB/

> So basically we're only going to get corporate content from Youtube.

Indeed, I foresee our current internet content supply to converge to what's currently available on television, ie: a very few good shows, but majorly common denominator low quality productions. I hate what television has turned into. Where channels like Discovery would have interesting content now it's only storage wars and other formulaic pulp. Especially the lasts years there has been an emergence of very good independent Youtube creators focusing on niche topics. I really enjoy those videos. But with this change, where will they go to get their audience and income?


Agreed. Even Netflix nowadays feels like just another traditional TV channel.

Impossible filters are no problem for Google. They already use them. Smaller companies and private sites will have problems, though.

Yeah, Google filters, but they work very poorly. Many misses and false positives.

YouTube will be fine IMHO. I think it makes it insanely hard for any new company to compete against them unless the technology to detect copyright materials suddenly becomes a commodity and/or becomes relatively inexpensive (which I don't believe).

Actually even if they get a license with every possible rights holder the rights holder may decide to not allow the video on youtube which again means upload filters.

It will be rather the opposite. Facebook will be able to comply or afford to pay for the damages, smaller networks can't afford the legal risks and will go offline.

I am 90% this means nothing and I disagree this won't affect big companies and will only affect small startups like some of the other comments here.

The law basically says that the company has to try it's best to prevent copyrighted material. If you're a small company, you can put together some simple algorithm and claim that's all you can really do. Big shots like youtube have the capital to be proactive and pay for things like real people to monitor claims. They're at a bigger risk for not doing enough.

Either way, the bar would be high enough that I don't think anyone is really going to be affected by this.


My hunch tells me this will be used as a tactical weapon by rights holders and PR companies to bury negative publicity in lawyer fees.

You can argue that you are using some content fairly and you did your best to prevent it in court while paying 500$/hr to your layer, or you can simply remove it.

But yeah, that won't be a problem for 95% of companies and startups - but it will be for some.


I wonder about that, because I don't think there are many european countries that follow the "American rule" system where each party pays it's own fees.

In the "English rule" system the losing party pays for the legal fees so a rich person can't just arbitrarily spam law suits.

But then again, I am making a lot of assumptions here (but then again it seems like so is everyone else here) so I don't know about the exact legal details that could change things.


Indeed. And as with most laws of this sort, action will almost certainly be taken against large, abusive parties, rather than going after little guys who are being honest and doing their best. The Internet will survive, and perhaps even thrive in an environment where big companies are no longer able to run roughshod over everyone else's content.

There is an exemption from any charges arising from the legislation for those who earn less than 5 million euros per annum.

That is very arbitrary. You can claim you're doing as much as you can. Who is going to determine how much you are really able to do? What if the judge decides you could've done more and decides to fine you anyway?

The interesting bits of article 17 which was 13 from the actual document [0]:

>If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:

>(a) made best efforts to obtain an authorisation, and

>(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event

>(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from, their websites the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).

[0]: http://www.europarl.europa.eu/doceo/document/A-8-2018-0245-A...


>> acted expeditiously (...) to disable access to, or to remove from, their websites the notified works

Stupid question not being native English speaker (or writer):

Shouldn't it be: "to disable access to, or to remove from their websites, the notified works" without a comma between from and their?

Otherwise, could the sentence also mean to disable access (...) to their websites? That could be a different thing than just enforcing rights to remove some content. Or it could be at least, a sentence without much meaning.


What about/if some right owners that pro-actively/easily grant authorisation for some uses that could increase their reach, and then their (related or not) revenue?

My worry is that the directive will be used in unique ways to censor content.

More than that, I fear that it will be used to justify other filters. "It worked with copyright, so why not do the same with hate speech, terrorism, and wrongthink?"

EDIT: "Oh, and if you don't like being censore, that means you endorse terrorism, because politics in 2019"


This marks the end of user generated content in Europe, as it is pretty much impossible to comply with the demand to filter all content at the behest of the copyright cartel.

Call me nuts, tinfoil, whatever but for last few years I'm having this hunch that politicians along with corporations are trying to "civilize" the Internet and ultimately turn it into cable tv-like controlled medium serving approved content because at this moment it's still running wild, because in their eyes it's too dangerous tool in hands of ordinary people who always can use it to discredit them and their actions.

I'll still be generating my own 'content' and uploading it to niche fora. Filtering can be done on such small scales by the usual moderation processes. "Pierre, please don't upload photos you didn't take. We've removed that attachment."

Most focused-interest boards don't have members uploading rips of Hollywood movies and claiming it to be 'fair use' and the ones on which I.am active haven't raised any concerns about this legislation. GDPR was more tumultuous.


This might unintentionally end up being a good thing because it will give rise to more decentralized platforms.

It will be interesting to see how this plays out legally. I wonder if from nation to nation if enforcement actually gets even more absurd than the actual law would indicate. It seems like the member states laws could leave lots of wiggle room / confusion.

but the question is how will they enforce this? let's say there are X units of content that based on the directive should not be available to Europeans through platform Y.

How will they know? unless someone reports the content its impossible for any EU system to catch that.


the EU will not. The Directive must be implemented by member states, and they will detail the means and the lengths of how this directive is applied/enforced.

Since every state has it's own version of Copyright office and what powers it has, it will not be 100% homogenous all over.


but then even more to the point. Will each country create its own "firewall" ? unlikely.. maybe a new business opportunity arises :P



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