This article was first published as an op-ed in the Financial Times.

YouTube and the music industry are battling it out over a key section of the new EU copyright directive as it heads into final negotiations between the European Parliament and the Council. At issue is whether the streaming site and other internet platforms should be held responsible when their users post content that violates someone else’s copyright.

In this corporate tug of war, nothing less than our freedom of expression online is tragically under threat from both sides. And as usual in copyright debates, while both sides talk a good game about the supposed interests of artists, it remains up in the air whether they will actually end up benefiting at all.

Photo & artwork in the public domain

Scenario A: cable TV 2.0

YouTube has repeatedly warned that parliament’s version of Article 13 might force them to block millions of videos in Europe. That concern is valid. The parliamentary text would make internet platforms inescapably liable for all copyright infringements, no matter what lengths they go to to prevent them.

Reducing copyright violations to zero is an impossible task. There is no global registry of copyrighted works, so platforms have no way of knowing for sure which content might get them in trouble. The only possible solution would be to allow only trusted parties like big companies to upload works. The internet would cease to be a place to “broadcast yourself” and come to resemble cable TV.

This scenario has many video creators rightfully up in arms. Video titles like “My channel will be deleted” are not just clickbait: Mass deletion of content is, in fact, a possible outcome of what may happen if the parliament proposal becomes law unchanged.

Scenario B: The filternet, powered by Google

But make no mistake: YouTube is not lobbying for a free and open internet. Instead, they are saying they would be happy if the EU went with the Council’s version of the text, drafted by the member states’ national governments. That version allows platforms to escape the crushing liability if and only if they implement upload filters. Every video users post must then first be approved by algorithms looking for copyright infringements.

We know from experience that such filters are prone to making mistakes. They are guaranteed to take down perfectly legal content, since they are fundamentally unable to distinguish permissible works like parodies from infringement. Creations that survive in a legal grey area today, like cover versions and memes, will be the first to go.

These filters are biased towards big companies, whose lists of what to block they blindly trust, while individual creators are treated as guilty until proven innocent. Such filters are easily abused by trolls and anyone else wanting to take content offline for malicious reasons. In short: upload filters are a serious threat to our freedom of expression.

YouTube and its owner Google have already invested tens of millions of dollars in their “Content ID” upload filter (and yet, it still keeps making mistakes and causing creators headaches). Requiring all platforms to deploy such software will give YouTube a clear competitive advantage and secure its dominance for decades to come. New start-ups and other competitors who can’t afford to develop their own filters will either need to shut down — or license Content ID. Google could become the main arbiter of what Europeans may post or upload to the web.

No to either!

MEP Axel Voss, who wrote the parliament’s text, now suggests that the music industry and YouTube ought to sit down to hammer out a workable compromise between these two scenarios.

But I say no to both. Neither option is acceptable — and no compromise is possible without independent creators and users at the table. More than 3 million people have signed a petition to protest this development. It’s clear: The people of Europe will not allow their freedom to post and upload online to end up as mere collateral damage in a corporate tug of war.

While the threat these scenarios pose to fundamental rights is obvious, it is much less clear how they would lead to additional revenues for creators — the goal that both sides keep claiming they want to achieve. At the same time, clauses that I believe would have brought actual improvements for artists, like the protections from unfair contracts in Article 14 of the parliamentary draft are at risk of being quietly dropped in negotiations.

If the draft law continues to prescribe either inescapable platform liability or upload filters, Europeans will have no choice but to demand that their representatives reject the directive as a whole when it comes up for a final vote in the new year, just a few months ahead of the next European elections.

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.

My name is Julia, I'm the Pirate in the European Parliament.

I'm fighting to make copyright in the EU unified, progressive and fit for the future. Will you join me?

2 comments

  1. 1

    As you say yourself, Google owns “Content-ID” and Youtube is the market leader in this segment. Consequently, there would be no change for Google in the question of liability and thus in the whole situation. The purpose of the reform would not be achieved (not at all).

    Yet, the crux of the matter is not that “Content-ID” — not only erroneously — deletes, but also represents a pseudo-solution that serves a completely “different purpose”.

    1.) If “Content-ID” were to work, there would be no problem at all (“value gap”). Youtube had to remove many, many (…) millions of videos over the years. So how is it possible to still find violations on Youtube (“defies the logic of a content filter”) ?

    The reason is quite simple: It’s a trick (sounds familiar…). This upload filter does not work or can be bypassed extremely easily (so far). And let’s not kid ourselves; it’s already difficult to find a search query on Youtube that doesn’t contain an infringement.

    2.) Behind “Content-ID” is a perfidious strategy (the “better Google way”) … As you can see for yourself: It is a clear attempt to establish a new standard (or ecosystem) over technology in which Google would again have a monopoly. Don’t we know the approach ? Or is there anyone who still believes that Google is about “fundamental rights” ?

    There is no need to explain what this means for competition. It would, of course, cement Youtube’s market power. Would that be good for competition or good for artists?

    At the end of the day, the national rights distributors will be abolished and replaced by Google. After all, “Content-ID” possesses a monetization not without reason. The pricing structure where cent amounts are still too much (…) The facts are known. The effects can already be seen today.

    3.) But something else is overlooked. All contents of users would then end up at Google (a direct data pipeline). A kind of “Android ecosystem for the web” in complete control with conceivable market power that will be equivalent to another new monopoly.

    As Tim Cook reminded us, “This is surveillance.” Or how does an upload filter work ?

    My solution would be simple. There must be no liability privilege (without “any exception”) for very large platforms (who have financial resources) for a repeated infringement of a specific work. This would limit the privilege to the decisive point.

  2. 2

    Danke!

    Meine Kinder erinnern sich übrigens mit Freuden daran, wie wir in Karlsruhe gegen Artikel 11, 13 und 2 demonstriert haben.

    Ich erinnere mich mit Schrecken daran, dass in der Woche drauf Artikel veröffentlicht wurden, die behauptet haben, wir hätten gar nicht existiert.

    Danke, dass Du für unsere Rechte eintrittst! Bitte kämpf weiter!

What do you think?