Wednesday, February 20, 2019

79 more votes are needed in the European Parliament to defend user-generated content against upload filters: EU Copyright Directive

Everything one can read on Twitter points to the EU Council being hell-bent to approve the proposed EU Copyright Directive (see Pirate Party MEP Julia Reda's tweet). There was a glimmer of hope that Merkel's junior coalition partner, the Social Democratic Party of Germany, could prevent the German government from supporting the proposal in today's meeting of Member States' diplomats. But the resistance they staged (after the delivery of 4.7 million online signatures) was too little, too late. Merkel imposed her will, and she owes some media companies big-time (in a recently uncovered scandal, a journalist who wrote articles for leading newsweekly Der Spiegel and won multiple awards had fabricated key parts of his stories, with a representative example being that he wrote Merkel appeared in "refugee" children's dreams). In order to prevent Article 13 from being adopted, the social demoracts would have had to be prepared to leave the coalition, and they would have had a legitimate basis as the coalition agreement speaks out against upload filters. While the bill doesn't say "upload filter," there's no way to implement its worst element, Article 13, without such filters, and everyone with a modicum of technical knowledge realizes that no filtering technology available today can make a fair-use determination...

So what does this mean in practice? It's not realistic to assume that the formal Council vote (which must be held at least at the level of the ministers--or, theoretically, by the heads of state or government--and will likely take place within about a week) would go differently. Again, if Germany's SPD threatened to leave the government coalition, then anything would be possible. There are signs of them looking for an exit from Merkel's unpopular coalition government, but their plans appear to center on a mid-term view scheduled for later this year.

The European Parliament will hold its second-reading vote in late March. Recognizing that many people take an interest in EU procedures for the first time because of the controversial and partly crazy EU Copyright Directive, here's an explanation of how high the hurdle is:

At the first-reading stage, where the Parliament's vote is irrelevant unless the Council (= Member States) agrees anyway, a simple majority is sufficient to reject a bill (not a final rejection at that stage, just a political statement) or to pass an amendment that modifies or deletes a passage.

That was last year. But this time around, at a second reading, rejection or any amendments will require an absolute majority of the members. This means MEPs who are against us (meaning they are for Article 13) can just stay away from the vote and thereby try to avoid the voter backlash from openly voting for Article 13. However, it's up to campaigners to build so much pressure that MEPs will actually want to attend and vote our way.

Looking at it from a practical angle, this means that any absentees or abstentions will have the very same effect as a vote FOR the Council's text.

By contrast, it takes a blocking minority of either 13 countries (no matter how small) or countries accounting for about 35% of the EU's total population to block something (such as Article 13) in the Council. This lopsided structure is a cornerstone of the EU's well-known democratic deficit. It gives national governments way more power than the Parliament. The Parliament is also disadvantaged in other ways, such as with respect to the right of taking legislative initiatives. It's basically always on the defensive and at the mercy of the Commission's attention (the Commission is the EU's executive government and practically like the secretariat of the Council).

Apart from temporarily vacant seats, the European Parliament has 751 members (750 + the President, whose vote doesn't have more weight than any other). Therefore, one needs 376 MEPs to vote for rejection or an amendment at the second-reading stage; by contrast, the proponents of the bill just need 376 in the aggregate of absentees, abstentions, and votes in favor of the bill.

At the first reading in September, 366 MEPs voted for the Parliament's version of Article 13 (which was quite bad, and arguably it's even worse now), while 297 voted against it. In order to reject it next time, it doesn't matter how many vote for it; even if nobody voted for it, we'd still need 376 votes--79 more votes than last time--to oppose Article 13.

I don't mean to sound defeatist. It can be done: 79 more votes in a 751-member parliament. But it's quite a challenge.

[Update] Here's a statement by the five countries that do not support the copyright bill in the EU Council. Note that the only two large EU member states to oppose the directive are governed by so-called right-wing populist parties: Italy (Mr. Salvini's Lega) and Poland (PiS). By contrast, there's a very high percentage of left-wingers among opponents of the directive. Widespread frustration over the copyright reform process may strengthen European right-wing parties going forward. [/Update]

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Huaweiphobia is over the top, but San Francisco jury must and will hear Samsung's allegations of FRAND breach by Chinese device maker

There was a time when the high-end smartphone market was considered a "two-horse race" between Apple and Samsung. A duopoly is better than a monopoly, but I'm glad there's now a lot more competition in that segment. One company that has made and continues to make a particularly important competitive impact is China's Huawei. For my app development company, I've bought comparable numbers of phones and tablets from each of the three aforementioned device makers.

It's an undeniable fact that the Chinese government's influence over local companies is huge, though there have also been stories of U.S. intelligence agencies requiring backdoors, and of countries like China being comfortable with U.S. software products such as Microsoft Windows only after they are at least given the opportunity to inspect source code.

Recently there's been a whole lot of newscycles involving Huawei and whether the West can trust them in the slightest. The most absurd story will probably be told again and again in the months or even years ahead: that Huawei was the FTC's "star witness" in the recent Qualcomm trial and that the FTC's antitrust enforcement activities, which actually benefit American companies and especially American consumers, would compromise national security by stregthening Huawei at Qualcomm's expense, with implications for 5G. At least the Qualcomm-aligned Internet trolls who said so chose to make me part of their other conspiracy theory, which is that the FTC is in Apple's pocket, and not to Huawei, in which case they'd have labeled me as a walking-talking security threat to the United States...

Huawei's CEO gave an exclusive interview to the BBC in which he addressed some of the controversies surrounding Huawei. It's worth listening to.

For my part, I'm still unconvinced that the detention of Huawei's CFO was a good idea, and one of the things that make me skeptical is that it would have been easy for Huawei to engage in any concealed financial transactions with Iran through a place like Switzerland (rather than going via a U.S. bank, which appears too stupid to be true).

As for security threats, the U.S. Ambassador to Germany, Richard Grenell (the best #MAGA diplomat imaginable!), recently said, according to German media, that it's a threat to telecommunications networks when infrastructure vendors are under the control of foreign governments, and that's right, but what should the conclusion be? My recommendation is to take the same approach to China as Ronald Reagan did to the Soviets: "Trust, but verify." Note the important two-letter difference here between "verify" and "vilify!"

Yesterday I reported on Huawei's settlement with MPEG LA following the enforcement of injunctive relief in Germany and supported a call by many industry players for proportionate patent remedies in Europe.

The context in which I do take Huawei to task, no matter how much I admire and like that company, is the obligation to license standard-essential patents on FRAND terms. I like Samsung, too, and that didn't prevent me from calling for antitrust action against them many years back in a similar context. And while Apple hasn't sued anyone over a SEP yet (thus I haven't had the opportunity to remind them of their FRAND obligations), I lashed out at them when they described a $40 per-device damages claim over five software patents as a "reasonable royalty," given that "reasonable" is the "FR" part of "FRAND" (and the "ND" part wasn't put before the Apple v. Samsung jury because Judge Koh unfortunately didn't admit real-world license fees into the evidence).

At the moment, however, Huawei is, to my great dismay, the only one of the top three device makers to behave in ways that call its commitment to FRAND into question. It appears to make supra-FRAND demands and to seek leverage through Chinese patent injunctions, a trade war-like issue that I believe is underreported to almost the same extent that other Huawei issues are overstated.

On Monday, despite the public holiday (Presidents' Day), Judge William H. Orrick of the United States District Court for the Northern District of California decided that Samsung's allegation of Huawei having breached its FRAND licensing obligations will be put before a San Francisco Jury in September, which is precisely what the Chinese plaintiff sought to avoid by means of a motion to strike its Korean rival's jury demand. Here's Judge Orrick's order (this post continues below the document):

19-02-17 Order Denying Huaw... by on Scribd

In Judge Orrick's opinion, the constitutional right to a jury trial is so fundamental to the U.S. legal system that a separate bench trial (trial before only the judge, without a jury) for Samsung's FRAND breach claim would only have been warranted if there hadn't been any basis whatsoever for a jury trial. Here, however, Judge Orrick found that even if one limited Samsung's FRAND breach damages claim to a recovery of the costs related to expert witnesses, it would (in my words) be better than nothing and still stufficient to justify a jury demand.

For the most part, the September trial will be about patent infringement allegations. But based on Judge Orrick's decision, the jury will also hear what Samsung has to say about Huawei's overall conduct. While infringement and validity are issues that have nothing to do with a patent holder's behavior, there is a risk to Huawei that jurors will view Samsung as the "good guys" and Huawei as the "bad guys."

Huawei's royalty expert, Michael Lasinski, also testified for the FTC against Qualcomm last month, and an attorney representing Qualcomm basically destroyed him. Samsung doesn't need or ask for my advice, but if I were them, I'd try to bring in the same Cravath lawyer (unless that firm is precluded from doing work for Samsung) just for the FRAND economics part. The outcome of the cross-examination might be the same again. Cravath and Quinn Emanuel (Samsung's counsel in the Huawei case) are already working together against Apple, so they might as well against Huawei.

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Tuesday, February 19, 2019

German government may oppose Article 13 of EU Copyright Directive in tomorrow's COREPER vote, according to tweet by MEP from coalition party

[Update on 02/20/2019] It appears Merkel imposed her will and social democratic resistance was too little, too late, so the EU Council will approve the "trilogue" result. [/Update]

The most problematic part of the proposed EU Directive on Copyright in the Single Market may be deleted tomorrow!

According to a tweet by Tiemo Woelken ("Wölken" in German), an MEP from the center-left Social Democratic Party of Germany (Merkel's coalition partner), Germany's minister of justice Katarina Barley (from the same party) is presently trying to persuade the chancellor, the minister of economic affairs (Peter Altmaier) and the chancellor's chief of staff (Helge Braun) to support this position. Here's the tweet (in German; this post continues below the tweet):

Translation:

"Update! #CopyrightDirective without #UploadFilter is a possibility. It won't be @katarinabarley's fault! She's presently trying to persuade @HBraun, @peteraltmaier and #Merkel to adopt the directive without #Article13. I hope @CDU [= Merkel's party] has understood how serious the situation is."

Mr. Woelken gave a great speech at today's JURI (Legal Affairs Committee of the European Parliament) debate. I particularly liked the fact that he emphasized, toward the end, the importance of user-generated content. That's what Article 13 is about; not "censorship."

About an hour before the tweet shown above, he encouraged the resistance movement to keep on fighting and said "you're being listened to." That may already have been based on some early indications of all the protests having an effect on the German government.

Eight countries opposed the directive in the past, while Germany voted in favor, though not enthusiastically. In order for a directive to be adopted, the Council (= where the Member States cast their votes) and the Parliament (= the elected representatives of the people) must agree, and in connection with directives the Council has a "qualified majority" voting system allowing two different options for a blocking minority: In order to be adopted, a bill needs to be supported by

  • 55% of the Member States (so any 13 countries, even the 13 smallest countries, can block) and

  • those Member States must also represent more than 65% of the total EU population (so any number of countries can block provided that they account for more than 35% of the EU's population).

Only if there is no blocking minority in place, a bill is adopted, so there are two bites at the apple: either get 13 countries or get fewer countries as long as they account for more than 35% of the total EU population. In the context of the EU Copyright Directive, a blocking minority based on the second criterion would be in place if the countries that previously opposed the bill hadn't changed their position (and there's no reason why they should) and Germany joined them: in that case the opposing countries would represent more than 35% of the total EU population. In fact, the total population size of Poland, Italy, Luxemburg, Malta, Slovakia, the Netherlands, Finland, Sweden and Germany would be approximately 43%. They could threaten to vote against unless Article 13 is thrown out. That's how it often works in the Council.

Not only is Mr. Woelken a perfectly credible source but there are two factors that would actually make it a logical thing for the German government to do:

  • The coalition agreement between Merkel's party (CDU), its small regional sister party (CSU) and the SPD contains a clause according to which Germany would not support upload filters.

  • Well over one million of the 4.7 million signatures delivered to Minister Barley today were from German citizens--mostly young people, including countless first-time voters. The SPD has recently experienced some recovery in the polls after making some political demands appealing to its traditional voter base. The EU Copyright Directive is now about young voters, and if Merkel did what she indicated in a speech today and supported upload filters, her party would take all the blame, with significant potential consequences in a crucial election year (European Parliament elections plus various regional elections in Germany, particularly in the East, where Merkel is from but most unpopular).

A public affairs consulting firm, Chronos, already tweeted about a change of the German government's position before Mr Woelken did (this post continues below the tweet):

When I asked them to provide a source, they declined to do so (this post continues below the tweet):

But this suggests that they, too, have an inside track. In my experience, information often leaks from those diplomatic circles. COREPER, the committee of permanent representatives (= the Members States' ambassadors to the EU), doesn't meet in public, but there's always a number of people in Brussels who know where the other Member States stand. That's the idea of having permanent representatives in Brussels: they constantly communicate regarding these processes.

Tomorrow (Wednesday), there'll be a COREPER vote unless the latest developments result in a postponement, which would be more than just a crack in the shell for the directive.

COREPER votes aren't final: the decisive votes have to be cast by the heads of state and government at a European Council meeting, or by ministers (or the state secretaries representing them) at an EU Council of Ministers meeting. But COREPER votes are meant to prepare the formal votes, and as long as a bill doesn't have a qualified COREPER majority, there's normally no point in putting it to a vote in a formal Council meeting (absent some new backroom agreement between countries that would change everything, but even then they'd normally hold another COREPER vote first).

Should the bill fail to get a qualified majority (= a majority so solid that there's no blocking minority of any kind) in the Council, the European Parliament's JURI committee will probably have to postpone its own vote (scheduled for next Tuesday, and meant to prepare a plenary vote in late March). If the Council does adopt the bill, but without Article 13, JURI could speak out in favor of the Council's new version. It would be irrational for JURI not to do so: no other article in the bill depends on Article 13.

Theoretically, the EU could later try to amend the directive to the effect of reintroducing Article 13. However, the next European Parliament will be structurally different from the current one, with more anti-establishment MEPs than ever.

In today's JURI debate, Axel Voss MEP, the German conservative (note that politicians from Merkel's party aren't conservative by American standards) who's the Parliament's rapporteur and the leading proponent of this directive, said that Article 13 was merely consistent with the case law. If that were so (it obviously isn't, but that's what he says anyway), Mr. Voss shouldn't have a problem with just dropping it in order to have a deal and proceed.

Mr. Voss's speech today was in parts just as absurd as Article 13 itself. For an example, he argued that most online platforms wouldn't be affected because they don't provide large quantities of copyrighted content. However, even private photos uploaded to social networks as profile pictures are copyrighted, so Article 13 casts a wider net than Mr. Voss would have you believe.

It was really disappointing to see Tadeusz Zwiefka MEP, a Polish center-right politician with a communist past, support the directive in today's JURI debate. He was among the MEPs who strongly opposed software patents in 2004-2005.

All going well, Article 13's days are numbered. Not only its days. Even its hours.

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Enforcement of German injunctions forces Huawei to take MPEG LA's AVC Patent Portfolio License

Qualcomm's enforcement of a likely invalid and most likely not infringed patent against Apple in Germany is a Pyrrhic victory that generates limited incremental chip sales but exacerbates its antitrust problems (instead of forcing Apple into a global settlement). But in another case, two German patent injunctions have brought about the desired result: MPEG LA, a patent pool company, "announced today that Huawei Technologies Co., Ltd., Huawei Device Co., Ltd and Huawei Device (Shenzhen) Co., Ltd ('Huawei') have become Licensees to MPEG LA's AVC Patent Portfolio License ('AVC License'). As a result of this agreement, all legal disputes related to patent enforcement actions brought by patent holders in MPEG LA's AVC License against Huawei have been resolved."

In November, MPEG LA announced that the Dusseldorf Regional Court ("Landgericht Düsseldorf" in Geman) ruled that Huawei and ZTE infringed patents of two contributors to its pool. In late December, MPEG LA announced that the Dusseldorf Higher Regional Court ("Oberlandesgericht Düsseldorf") denied Huawei's and ZTE's motions to stay the enforcement of injunctions over EP1773067 in Huawei's case and EP1750451 in ZTE's case. Both patents were filed for by Panasonic. But MPEG LA may have litigated over other patents as well (which would explain why they claimed that patents belonging to two pool contributors were enforced).

Presumably, ZTE will also settle in the near term. German injunctions can give a patent holder significant leverage, provided that they can't just be worked around.

MPEG LA appears to have a perfect litigation track record in Germany: whenever they sued someone there, MPEG LA prevailed on one or more patents. An MPEG LA press release states that "[a] team led by Axel Verhauwen of Krieger Mes & Graf v. der Groeben and Gottfried Schüll of Cohausz & Florack represented the plaintiffs." To the best of my knowledge, Mr. Verhauwen has represented MPEG LA in either all or at least the vast majority of its German lawsuits over the years.

It's unclear why Huawei and ZTE didn't just take a license, given that the cost of defending against a few patent infringement cases typically exceeds that of the annual royalty cap. It could be (and this is pure speculation) that those companies take issue with some non-monetary terms, such as a grant-back obligation.

In early December, 34 organizations signed an open letter calling for the application of the proportionality principle to patent infringement remedies in Europe. The list includes industry organizations such as CCIA and ip2innovate, major technology companies such as Samsung, Microsoft, SAP, Intel, HP, and Cisco, and automotive companies such as Volkswagen, Daimler, BMW, and Honda.

What makes Germany a particular hotbed for patent infringement lawsuits is the combination of speed, the enforcement gap (because it takes longer to invalidate a patent that should never have been granted than to obtain an infringement ruling) and, above all, access to injunctive relief as a legal remedy (as opposed to an equitable remedy involving an eBay-like analysis). In many cases, litigation watchers like me just have to look at the patent claims-in-suit to figure out that a plaintiff like BlackBerry (currently suing Facebook and its WhatsApp and Instagram subsidiaries) is simply playing the lottery with patents of dubious validity (software patents...), just because the grand prize is a Germany-wide injunction.

While I do agree with the above-mentioned open letter, the situation is more likely to get worse than to get better anytime soon.

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The best tweet ever on the EU Copyright Directive sums up the bloc's miserable failure and misguided approach

If I'm not mistaken, this is the first time--in almost ten years and after more than 2,000 posts--that a tweet gives rise to a FOSS Patents article. This is the one, and I'll comment below:

This is about the European Commission's offensive Medium post. Some IP radicals in the internal market commissioner's cabinet or the IP unit of the Commission's services had flown off the handle and referred to critics of a copyright bill, including (among others) numerous law professors and the inventor of the World Wide Web, as "the mob."

Prior to Dr. Schestowitz, no one had actually noticed the fact that the European Commission was using an American Internet platform--Medium--for this insult because it's so normal in a way, though it's an insanity if you actually think about it. It relates to why the whole mess that is the EU Copyright Directive is on the agenda, and to what's bound to go wrong in the future, especially with that bill being enacted into law.

The insanity here is that Medium is exactly an example of the blessings that user-generated content brings and that the EU Copyright Directive's Article 13 is designed to hamper.

As I explained yesterday, the EU institutions are now about to adopt a fake compromise. The companies opposing the directive have no one to blame but themselves because they didn't leverage those genuine grassroots activities out there in the right way. They failed to persuade politicians from the center to the right, and didn't even convince some left-wingers (even the German Greens). Blowing things out of proportion with terms like "censorship" gets you nowhere. Also, while I'm really happy about and impressed by the success of the savetheinternet.info online petition, it doesn't make sense to claim that the directive threatens the Internet in general. We're talking about specific issues and should define them precisely.

Sometimes there's a pretty clear left-right divide in European IP-related legislative processes. Ultimately the European Parliament near-unanimously rejected the software patents bill in 2005, but that was because of a procedural agreement. When it came to substance, it was basically a mix of left-wingers, euroskeptics (not as strong back then as they are now, but always my friends), and a progressive minority among center-right parties (such as Finnish MEP Piia-Noora Kauppi, former Polish prime minister Jerzy Buzek and Czech MEP Jaroslav Zverina) who sided with critics of the proposal.

With the proposed Directive on Copyright in the Digital Single Market, the problem is that politicians left and right have lost faith in market forces. They see the EU's failure in the digital-platform economy and believe overregulation is the right reponse. (With cars increasingly being digital devices on wheels, that failure may be Europe's industrial demise within a couple of decades.)

That digital failure is again illustrated by the fact that the European Commission has to take to an American digital platform to offend millions of European citizens just because they're dissidents in the copyright context.

What those politicians haven't understood yet (and there isn't much time remaining to explain it to them) is that overregulation won't solve the problem. It will exacerbate it because it will make it even harder for European companies to gain a foothold in that market. It will motivate entrepreneurial young Europeans to start their companies, or take jobs with startups, in the United States rather than in Europe.

Investment in digital-platform startups will be discouraged, and the carveout for companies younger than three, smaller than 10 million euros in annual revenues and with fewer than five million monthly users won't help in the slightest as I explained in my previous post.

Not only the European Commission but also the other institutions (and the national governments, which are represented in the Council) should ask themselves why the EU can't even use a European digital platform to insult voters and taxpayers. And they should realize that a focus on how to win, not an indulgence in envy, is the solution.

The European Union will only make things worse if it employs the methods of the old Soviet Union. You can't compete with the United States by restricting freedom. What has made China so successful? Freedom in the sense of capitalism (human rights are another topic).

To be clear, it's not just about platform companies. Europe's economy and society will suffer in general if European user-generated content will be less abundant than American or Asian user-generated content. User-generated content is used in so many sectors of the economy, and--which is extremely important--in education. And even in politics, as the Commission's post demonstrated in a negative sense.

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Monday, February 18, 2019

Backroom deal on EU Copyright Directive is a fake compromise: here's what a genuine compromise would look like

Politico.eu 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 SaveTheInternet.info collected 4.7 million digital signatures on change.org, which they delivered to Germany's minister of justice today, savetheinternet.eu 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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Saturday, February 16, 2019

European Commission removes offensive blog post that called critics of copyright bill a "mob"

[Update] Please sign the related Change.org petition demanding an apology. [/Update]

[Update 2] The European Commission has indeed apologized. [/Update 2]

Earlier today I shared my views on what needs to improve with respect to strategy and execution in order to prevent the EU's "copywrong" bill from being adopted. Later I became aware, through one of German Pirate Party MEP Julia Reda's tweets, of a European Commission blog post on Medium.com with a headline insulting all critics (even including law professors, by the way) of the proposed EU Directive on Copyright in the Digital Single Market:

"The Copyright Directive: how the mob was told to save the dragon and slay the knight" (emphasis added)

Here's a screenshot (from an archive; this post continues below the image):

Many people were outraged, and I called this a "new low" for political discourse in the EU. It's simply inappropriate and unacceptable for a government agency to insult citizens concerned about a legislative proposal (many of whom foot the bill of the Brussels gravy train with their taxes). If there had been a violent demonstration breaking the windows of the Berlaymont building, the term "mob" might have been justified. But no such thing happened in connection with the EU Copyright Directive.

We're just talking about citizens expressing their views on the Internet and participating in peaceful demonstrations. I actually think the opponents of that ill-conceived, misguided bill are too nice for their own good. Mudslinging and naming & shaming are not the name of the game, but sometimes it's hard to win entirely without them. Apart from some Internet memes involving one MEP (Axel Voss), they haven't really attacked some people as hard as they could have and in my view should have. My brothers-in-arms in the fight against the EU software patent directive, the FFII activists, maintained a wiki on which they documented the lies of countless politicians. I remember how some MEPs were really upset, especially when they realized that those unfavorable wiki pages were among the very first Google search results for their names. I'm quite sure one could research and publish a lot more information about longstanding relationships of numerous MEPs with certain media companies. And even if one did that, citizens would still be citizens, voters would still be voters, and taxpayers would still be taxpayers--not a "mob" unless there's violence involved, or at an absolute minimum, insults that can't be justified with political disagreement.

It's something else when President Trump takes to Twitter in his outspoken way. He's the President, and he gets attacked at a very personal level all the time. Also, he's already campaigning for reelection. But imagine the outcry you'd hear in the U.S. if the DOJ referred to dissidents in an IP context as a "mob!"

The EU Commission's blog post was an embarrassment, and the attempted retraction is ridiculous. If the Commission had officially apologized, then it would have been a regrettable--but rectified--mistake. But this here is as dishonest as it is deficient (click on the screenshot to enlarge; this post continues below the image):

I take issue with that retraction for two reasons:

  • It's an outright lie that the blog post was "understood in a way that doesn't reflect the Commission's position." They just blame the recipients of the post. But I showed you the headline before. What can be misunderstood about "how the mob was told to save the dragon and slay the knight" (emphasis added)? There's simply no plausible alternative explanation for whom they meant by "the mob" other than us dissidents.

  • The URL still contains the insult (as you can also see by enlarging the screenshot further above):

    https://medium.com/@EuropeanCommission/the-copyright-directive-how-the-mob-was-told-to-save-the-dragon-and-slay-the-knight-b35876008f16

First they said we (including the law professors among us) just didn't understand the effects the proposed piece of legislation would have if adopted. Now they say we just didn't understand an unambiguous headline.

The body of the deleted Medium blog post (still archived here, at least for the time being) wasn't a whole lot better--though more civilized--than the headline. For an example, they point to the (aggregate) trillion-dollar market cap of Silicon Valley giants. I'm dividing my time between California and Germany this year, and at a Silicon Valley breakfast meeting an executive (of a non-party to the disputes I comment on) told me that in his own experience, based on meetings with Commission officials in Brussels, the problem is that there's a lot of envy of Silicon Valley. He noted that EU officials appear to be more interested in how they can potentially weaken those companies than in how something similar could develop in Europe. The removed blog post validated that observation.

It's a dangerous obsession. Decisions and initiatives resulting from the aforementioned mindset won't strengthen the European economy on the bottom line, but they will harm European consumers. In some cases, the unintended consequence could even be that misguided legislation and regulation strengthens a company like Google. For an example, the bargaining power of news publishers will be quite limited as they need traffic, so Article 11 will likely be counterproductive and only serve to cement Google's news monopoly.

Even without the "mob" insult, the metaphor of a dragon (meaning Facebook and Google) versus a knight missed the point. This is not the black-and-white world of fairy tales. Yes, it's important to keep an eye on what such powerful players are doing. But no, if something is intended to weaken them, it won't necessarily make the world a better place. It takes more than that.

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