Control Freaks

The EU is considering a copyright proposal that would require code-sharing platforms to monitor all content that users upload for potential copyright infringement (see the EU Commission's proposed Article 13 of the Copyright Directive ). The proposal is aimed at music and videos on streaming platforms, based on a theory of a "value gap" between the profits those platforms make from uploaded works and what copyright holders of some uploaded works receive. However, the way it's written captures many other types of content, including code.

We'd like to make sure developers in the EU who understand that automated filtering of code would make software less reliable and more expensive--and can explain this to EU policymakers--participate in the conversation.

Why you should care about upload filters

Upload filters (" censorship machines ") are one of the most controversial elements of the copyright proposal, raising a number of concerns, including:

• Privacy : Upload filters are a form of surveillance, effectively a "general monitoring obligation" prohibited by EU law
• Free speech : Requiring platforms to monitor content contradicts intermediary liability protections in EU law and creates incentives to remove content
• Ineffectiveness : Content detection tools are flawed (generate false positives, don't fit all kinds of content) and overly burdensome, especially for small and medium-sized businesses that might not be able to afford them or the resulting litigation

Upload filters are especially concerning for software developers given that:

• Software developers create copyrightable works--their code--and those who choose an open source license want to allow that code to be shared
• False positives (and negatives) are especially likely for software code because code often has many contributors and layers, often with different licensing for different components
• Requiring code-hosting platforms to scan and automatically remove content could drastically impact software developers when their dependencies are removed due to false positives

Last week, the European Parliament's MEP in charge of overhauling the EU's copyright laws did a U-turn on his predecessor's position. Axel Voss is charged with making the EU's copyright laws fit for the Internet Age, yet in a staggering disregard for advice from all quarters, he decided to include a obligation on websites to automatically filter content.

Article 13 sets out how online platforms should manage user-uploaded content appears to have the most dangerous implications for fundamental rights. Never mind that the new Article 13 proposal runs directly contrary to an existing EU law -- the eCommerce Directive - which prohibits member states from imposing general monitoring obligations on hosting providers.

Six countries -- Belgium, the Czech Republic, Finland, Hungary, Ireland, and the Netherlands -- sought advice from the Council's Legal Service last July, asked specifically if the standalone measure/obligation as currently proposed under Article 13 [would] be compatible with the Charter of Human Rights and queried are the proposed measures justified and proportionate? But this does not seem to have been addressed.

The aim of the rule, which is in line with the European Commission's proposals more than a year ago, is to strengthen the music industry in negotiations with the likes of YouTube, Dailymotion, etc. Under Voss' revised Article 13, websites and apps that allow users to upload content must acquire copyright licenses for EVERYTHING, something that is in practice impossible. If they cannot, those platforms must filter all user-uploaded content.

The truth is that this latest copyright law proposal favors the rights-holders above anyone else. And we though MEPs represented the people.

Two broadband providers, BT and EE, have gone to the Supreme Court in London to appeal two key aspects of an earlier ruling, which forced major UK ISPs to start blocking websites that were found to sell counterfeit goods.

Previously major ISPs could only be forced, via a court order, to block websites if they were found to facilitate internet copyright infringement. But in 2014 the High Court extended this to include sites that sell counterfeit goods and thus abuse company trademarks.

The providers initially appealed this decision, not least by stating that Cartier and Montblanc (they raised the original case) had provided no evidence that their networks were being abused to infringe Trade Marks and that the UK Trade Mark Act did not include a provision for website blocking. Not to mention the risk that such a law could be applied in an overzealous way, eg requiring the blocking of eBay because of one seller.

The ISPs also noted that trademark infringing sites weren't heavily used, and thus they felt as if it would not be proportionate for them to suffer the costs involved.

In April 2016 this case went to the Court of Appeal (London) and the ISPs lost and so the appeal to the Supreme Court.