Monday, February 18, 2019

Backroom deal on EU Copyright Directive is a fake compromise: here's what a genuine compromise would look like published the outcome of backroom negotiations (called "trilogue" because three institutions participated) on the EU Copyright Directive. Adoption of that text would be tantamount to the unconditional surrender of critics of the most ill-conceived parts of the proposal.

But the problem is that losers can't be choosers. They can try, and every once in a while it may work, but the resistance movement needs to realize that it has missed previous opportunities to build a majority in the Parliament, or a blocking minority in the Council. In order to prevent the worst, it's important to make a significant concession--accepting Article 11 despite the fact that it's moronic and will be counterproductive--and to focus on Article 13 (upload filters).

As I explained in the blog post I just linked to, it's not just about demands. It's also about strategy and execution. While it's really impressive that the grassroots activists behind collected 4.7 million digital signatures on, which they delivered to Germany's minister of justice today, is an underwhelming, run-of-the-mill issue coalition website. The bottom line is that what has been done so far has not been enough.

The "trilogue" result is a typical example of what happens when one side has the upper hand and just makes some cosmetic but unhelpful concessions. Germany's minister of justice, who simply seeks to hide behind an EU decision and Germany's coalition government (despite the coalition agreement speaking out against upload filters), welcomes a carve-out for small companies. But that's a fake carve-out. It only applies to companies that are less than three years old, have annual revenues below 10 million euros and fewer than 5 million users a month. I don't want to accuse Mrs. Barley of lying, so I'll give her the benefit of the doubt that she simply doesn't understand the world of technology startups. But if a startup seeks to raise capital, it must present a business plan that will obviously envision staying in business for more than three years and generating, in the foreseeable future, more than 10 million euros in annual revenues--and if the legislative framework poses a threat to a business model once such a modest size has been reached, it's basically as much of a problem as if the risk factors were there from the get-go.

That was just one example, and the document contains many more. But let's focus on the way forward.

If the same organizations and the same people make the same demands and raise the same arguments as before, there's a very high risk that the outcome will be the same as before, which at this stage means that the trilogue result will be enacted into law.

A turnaround is still possible, but not with "more of the same."

The most constructive approach is to say: We really just want to get rid of Article 13, and only because of Article 13 we're forced to advocate outright rejection. We recognize that you (the other side) are in a strong position, and you'll get your "link tax" in the form of Article 11. We'll swallow that insult to human intelligence, and maybe we'll try to get it repealed further down the road, but for now we'll live with it--provided that Article 13 is stricken.

It's not just that something must change about the demands. It's also the packaging.

Believe me, I understand why the term #CensorshipMachine was chosen. But on the home stretch anything overly alarmist is just excess baggage that makes it harder to find and promote solutions.

Let's face it: the ones pushing for Article 13 don't want to attack anyone's freedom of speech; they'll accept collateral damage to the freedom of speech, and that's bad enough, but not the same as if censorship was the objective. Censorship is an issue in Germany because of a national law practically requiring social networks to delete even above-board messages lest they be fined. Article 13 is about user-generated content.

It's sometimes inevitable that one must be against something. Case in point, my award-winning EU campaign was named NoSoftwarePatents. But at a minimum one must provide a precise definition of what one is against, and not blow things out of proportion or put up a strawman.

The reason we're against Article 13 is that we're for user-generated content. We can also just say "user content" as the omission of "generated" makes it shorter and people should still understand.

We're for creativity. (But not in the sense of the 2004/2005 CampaignForCreativity, which used to campaign for software patents!)

Let's demonstrate reasonableness through an adjustment of our demands and a fine-tuning of our rhetoric.

In politics, like in antitrust, you want to have a credible theory of harm that is supported by the facts. Harm to user content is clear, and the trilogue result doesn't do anything to alleviate our concerns by theoretically giving users access to the courts to assert their fair use rights: seriously, who apart from maybe the top 0.0001% of all YouTubers would go to court to get an upload approved?

So far, the resistance movement has not even been able to get all Greens behind it. I read that German Green MEP Helga Truepel ("Trüpel" in German) supports the bill. I actually remember her as having been one of the two or three most unreasonable MEPs on the Culture & Education Committee in connection with the Commission's 2007 White Paper on Sports, so I'm not totally surprised she's clueless in the copyright context as well, but when you don't even have all Greens in your camp, you really must get more traction among center-right and right-of-center parties to offset those pro-Article-13 pockets from the center to the left.

In recent days, media coverage has been a bit more balanced. There is at least a chance that major publishing companies will be much more comfortable when they get their stupid Article 11.

The Commission referred to the resistance movement as a "mob." German conservatives allege that the emails they get are sent by "bots," with one of them saying that all those mails have GMail addresses and Google shouldn't stoop to a fake email campaign, though GMail is simply the technically best email service out there and many tech-savvy people use that one. Take this advice from a proven majority builder: while there may still be some individuals whom you must attack hard, especially if they're on the payroll of media companies, you now have the chance to stand on higher ground and demonstrate reasonableness. Drop terminology like "CensorshipMachine" in the build-up to the final vote. Such rhetoric will do you a disservice. Promote user content and ask MEPs to defend it.

If the Parliament accepts everything and just deletes Article 13, the reform will still become law because there's no strict logical dependency of any other article on Article 13.

Time is of the essence. @GoogleEurope tweeted that it would take some time to analyze the trilogue result and determine the next steps, but you can't afford that luxury. The European Parliament's Legal Affairs Committee will presumably vote in a week from tomorrow, in preparation of the final plenary vote.

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