Copyrighting hyperlinks

The EU recently enacted an internet censorship law giving websites the right to demand fees for linking to them. It was hoped that Google in particular would end up paying for links to European news providers struggling for revenue in the modern internet environment.

But it seems that Google may have other ideas. Google is changing the way it displays news stories produced by European publishers in France as new copyright rules go into effect. Rather than paying publishers to display snippets of their news stories, as was intended, Google will show only headlines from articles instead.

Google says that it doesn't pay for news content as a matter of policy. The company shut down its Google News in Spain after a law passed in 2014 would have mandated such payments. Google are sticking to their guns. The company said:

We believe that Search should operate on the basis of relevance and quality, not commercial relationships. That's why we don't accept payment from anyone to be included in organic search results and we don't pay for the links or preview content included in search results.

This move will disappoint publishers who had hoped for additional revenue as a result of new copyright law that goes into effect in France next month. The country is the first to implement European Union copyright rules passed earlier this year .

But perhaps there is a worse to come for European companies. It could be that in a page of Google news search results, US news services may have embellished entries with snippets and thumbnail images whilst the European equivalent will just have a boring text link. And guess which entries people will probably click on.

Maybe it won't be long before European companies set their fees at zero for using their snippets and images.

Against all the odds, but with the support of nearly a million Europeans , MEPs voted earlier this month to reject the EU's proposed copyright reform--including controversial proposals to create a new "snippet" right for news publishers, and mandatory copyright filters for sites that published user uploaded content.

The change was testimony to how powerful and fast-moving Net activists can be. Four weeks ago, few knew that these crazy provisions were even being considered. By the June 20th vote, Internet experts were weighing in , and wider conversations were starting on sites like Reddit.

The result was a vote on July 5th of all MEPS, which ended in a 318 against 278 victory in favour of withdrawing the Parliament's support for the languages. Now all MEPs will have a chance in September to submit new amendments and vote on a final text -- or reject the directive entirely.

While re-opening the text was a surprising set-back for Article 13 and 11, the battle isn't over: the language to be discussed on in September will be based on the original proposal by the European Commission, from two years ago -- which included the first versions of the copyright filters, and snippet rights. German MEP Axel Voss's controversial modifications will also be included in the debate, and there may well be a flood of other proposals, good and bad, from the rest of the European Parliament.

There's still sizeable support for the original text: Article 11 and 13's loudest proponents, led by Voss, persuaded many MEPs to support them by arguing that these new powers would restore the balance between American tech giants and Europe's newspaper and creative industries -- or "close the value gap", as their arguments have it.

But using mandatory algorithmic censors and new intellectual property rights to restore balance is like Darth Vader bringing balance to the Force: the fight may involve a handful of brawling big players, but it's everybody else who would have to deal with the painful consequences.

That's why it remains so vital for MEPs to hear voices that represent the wider public interest. Librarians , academics , and redditors, everyone from small Internet businesses and celebrity Youtubers, spoke up in a way that was impossible for the Parliament to ignore. The same Net-savvy MEPs and activists that wrote and fought for the GDPR put their names to challenge the idea that these laws would rein back American tech companies. Wikipedians stood up and were counted: seven independent, European-language encyclopedias consensed to shut down on the day of the vote. European alternatives to Google, Facebook and Twitter argued that this would set back their cause . And European artists spoke up that the EU shouldn't be setting up censorship and ridiculous link rights in their name.

To make sure the right amendments pass in September, we need to keep that conversation going. Read on to find out what you can do, and who you should be speaking to.

Who Spoke Up In The European Parliament?

As we noted last week, the decision to challenge the JURI committee's language on Article 13 and 11 last week was not automatic -- a minimum of 78 MEPs needed to petition for it to be put to the vote. Here's the list of those MEPs who actively stepped forward to stop the bill. Also heavily involved was Julia Reda, the Pirate Party MEP who worked so hard on making the rest of the proposed directive so positive for copyright reform, and then re-dedicated herself to stopping the worst excesses of the JURI language, and Marietje Schaake , the Parliament's foremost advocate for human rights online.

These are the core of the opposition to Article 13 and 11. A look at that list, and the final list of votes on July 5th, shows that the proposals have opponents in every corner of Europe's political map. It also shows that every MEP who voted for Article 13 and 11, has someone close to them politically who knows why it's wrong.

What happens now?

In the next few weeks, those deep in the minutiae of the Copyright directive will be crafting amendments for MEPs to vote on in September. The tentative schedule is that the amendments are accepted until Wednesday September 5th, with a vote at 12:00 Central European Time on Wednesday September 12th.

The European Parliament has a fine tradition of producing a rich supply of amendments (the GDPR had thousands). We'll need to coalesce support around a few key fixes that will keep the directive free of censorship filters and snippet rights language, and replace them with something less harmful to the wider Net.

Julia Reda already proposed amendments. And one of Voss' strongest critics in the latest vote was Catherine Stihler, the Scottish MEP who had created and passed consumer-friendly directive language in her committee, which Voss ignored. (Here's her barnstorming speech before the final vote.)

While we wait for those amendments to appear, the next step is to keep the pressure on MEPs to remember what's at stake -- no mandatory copyright filters, and no new ancillary rights on snippets of text.

In particular, if you talk to your MEP , it's important to convey how you feel these proposals will affect you . MEPs are hearing from giant tech and media companies. But they are only just beginning to hear from a broader camp: the people of the Internet.

Users around the world have been outraged by the European Commission's proposal to require websites to enter into Shadow Regulation agreements with copyright holders concerning the automatic filtering of user-generated content . This proposal, which some are calling RoboCopyright and others Europe's #CensorshipMachine , would require many Internet platforms to integrate content scanning software into their websites to alert copyright holders every time it detected their content being uploaded by a user, without any consideration of the context.

People are right to be mad. This is going to result in the wrongful blocking of non-infringing content, such as the fair use dancing baby video . But that's only the start of it. The European proposal may also require images and text -- not just video -- to be automatically blocked on copyright grounds. Because automated scanning technologies are unable to evaluate the applicability of copyright exceptions, such as fair use or quotation, this could mean no more image macros , and no more reposting of song lyrics or excerpts from news articles to social media.

Once these scanning technologies are in place, it will also become far easier for repressive regimes around the world to demand that Internet platforms scan and filter content for purposes completely unrelated to copyright enforcement -- such as suppressing political dissent or enforcing anti-LGBT laws. Even when used as originally intended, these automated tools are also notoriously ineffective, often catching things they shouldn't, and failing to catch things they intend to. These are among the reasons why this new automatic censorship mechanism would be vulnerable to legal challenge under Europe's Charter of Fundamental Rights, as we explained in our last post on this topic .

A Filtering Mandate Infringes the Manila Principles on Intermediary Liability

Two years ago, well before the current European proposal was placed on the table, EFF and our partners launched the Manila Principles on Intermediary Liability . Despite not being a legal instrument, the Manila Principles have been tremendously influential. It has been endorsed by over 100 other organizations and referenced in international documents, such as reports by United Nations rapporteurs and the Organization for Security and Co-operation in Europe (OSCE), along with the Global Commission on Internet Governance's One Internet report.

According to the Manila Principles (emphasis added):

Intermediaries should be shielded from liability for third-party content

• Any rules governing intermediary liability must be provided by laws, which must be precise, clear, and accessible.

• Intermediaries should be immune from liability for third-party content in circumstances where they have not been involved in modifying that content.

• Intermediaries must not be held liable for failing to restrict lawful content.

• Intermediaries must never be made strictly liable for hosting unlawful third-party content, nor should they ever be required to monitor content proactively as part of an intermediary liability regime .

Forcing Internet platforms ( i.e ., intermediaries) into private deals with copyright holders to automatically scan and filter user content is, effectively, a requirement to proactively monitor user content. Since sanctions would apply to intermediaries who refuse to enter into such deals, this amounts to an abridgment of the safe harbor protections that intermediaries otherwise enjoy under European law . This not only directly contravenes the Manila Principles, but also Europe's own E-Commerce Directive.

The Manila Principles don't ban proactive monitoring obligations for the sake of the Internet intermediaries; the ban is to protect users. When an Internet platform is required to vet user-generated content, it has incentive to do so in the cheapest manner possible, to ensure that its service remains viable. This means relying on error-prone automatic systems that place copyright holders in the position of Chief Censors of the Internet. The proposal also provides no recourse for users in the inevitable cases where automated scanning goes wrong.

That doesn't mean there should be no way to flag copyright-infringing content online. Most popular platforms already have systems in place that allow their users to flag content --for copyright infringement or terms of service or community standards violations. In Europe, the United States, and many other countries , the law also requires platform operators to address infringement notices from copyright owners; even this is the subject of considerable abuse by automated systems . We can expect to see far more abuse when automated copyright bots are also put in charge of vetting the content that users upload.

Europe's mandatory filtering plans would give far too much power to copyright holders and create onerous new barriers for Internet platforms that seek to operate in Europe. The automated upload filters would become magnets for abuse -- not only by copyright holders, but also governments and others seeking to inhibit what users create and share online.

If you're in Europe, you can rise up and take action using the write-in tool below, put together by the activists over at OpenMedia. This tool will allow you to send Members of the European Parliament your views on this repressive proposal, in order to help ensure that it never becomes law.

Take action: Save the Link