Saturday, February 16, 2019

EU Copyright Directive: rejection of entire bill or of Article 13 only realistic options for opponents of idiocy

I'm a copyright hardliner regarding the scope of copyrightable works, a reasonably narrow exception for fair use, and remedies. I can say so without fear of contradiction from those who read my postings on copyright on this blog, particularly on Oracle v. Google, or who debated the Blizzard v. bnetd DMCA case with me back in the day. Copyright has been the basis of my livelihood ever since I started writing articles for computer magazines first, then computer books, while in high school. Meanwhile I've spent a lot of time and money developing software, and I've written tens of thousands of trivia questions (even thousands in recent years).

It says something about the utter lunacy that is the EU's proposed Directive on Copyright in the Digital Single Market ("EU Copyright Directive") when a staunchly pro-copyright blogger and creator of copyrightable works like me opposes it--obviously not every single word of it, but, at a minimum, Articles 11 ("link tax") and 13 ("upload filter"). The only other occasion on which I felt like this involved the EU as well: the CJEU's outrageous link liability decision.

The purpose of this post is to provide some unsolicited advice to the companies, industry bodies, NGOs and activist groups thinking about their strategy in a situation in which there's every reason to assume, based on the information available, that the "trilogue" (EU-style backroom negotiations between Commission, Council (= Member States), and Parliament) resulted in a very bad deal.

In 2005 and 2007, I emerged victorious from two very similar situations in the EU. I'm not sure anyone presently campaigning against the insane parts of the EU Copyright Directive can claim to have prevailed under such circumstances even once. So here's the experience from which I'm speaking, and I hope those war stories will encourage those in the trenches and serve as instructive examples. But after the war stories, I'll make some recommendations (based on this experience) that are specific to the EU Copyright Directive. So, first the old stories:

  • In 2004 and 2005, I ran a campaign named NoSoftwarePatents against the proposed EU Directive on the Patentability of Computer-Implemented Inventions ("Software Patents Directive"). I was not the founder of that movement: Hartmut Pilch was. But my campaign got significant support from small and medium-sized U.S. and European companies, provided content in 17 European languages, and I advocated a "restart" motion (which the Parliament adopted and the Commission ignored) as well as, at a time when even our political allies were highly skeptical, outright rejection (without conciliation).

    For the first time in EU history (and possibly still the only time to date), the European Parliament threw out a bill at the second-reading stage, where it normally either adopts the Member States' position or goes into conciliation with the other institutions. This event was significant enough that the Economist Group handed me the Campaigner of the Year award (which had gone to a pope three years earlier and went to Governor Schwarzenegger two years later), though Bono was another nominee, and then-outgoing European Parliament President Josep Borrell mentioned it as one of the most significant events in the Parliament's history. It was widely seen as a move that strengthened the Parliament, especially since the hurdle is high (you need a majority of the members, but in that parliament you always have many absentees).

  • In 2007, the European Commission was preparing a White Paper on Sports. Helping my friends at Real Madrid, the world's most famous and most popular sports team, became the only non-IT project in my career. The problem was that left-wingers and conservatives in name only formed an unholy alliance with corrupt association officials and FC Bayern Munich (which just sought to harm rivals to have better chances of winning the most important title for club teams, the Champions League). They were trying to pressure the EU to turn competition law on its head and authorize an extreme case of tying that would have forced my client, but also our informal allies (on this issue) at FC Barcelona and AC Milan, to submit to a "collective selling" (of broadcasting rights) system that would have cost my client roughly 100 million euros per year (the amount they later paid for the transfer of Cristiano Ronaldo).

    I wasn't just a "lobbyist," but authored a 41-page paper that was an informal preemptive antitrust complaint with the Commission. It was the first time I made a FRAND argument.

    Due to delays on my client's side (soccer clubs are a bit chaotic and not too strategic), we missed the opportunity to influence the European Parliament's four committee votes on a resolution that was meant to influence the Commission. The committee votes had gone against us, with only JURI (Legal Affairs) having been close to reasonable and the other three taking ideological positions. It was pure socialism, but with support from the nominally conservative European People's Party.

    While I was comfortable with the Commission officials in charge at the time being far from pursuing a radical agenda, it was critical to show to the ultimate decision-makers that there was no parliamentary majority for radical proposals. A pro-Brexit UK conservative (then an MEP, now an MP), Chris Heaton-Harris, was less concerned about substance than about subsidiarity: he didn't want the EU to impose sports rules on national associations and leagues. During our first meeting, Chris signed a proposed deleting amendment: we just took aim at the one passage of the proposed resolution that was trying to build a (fake) pro-competitive justification for tying a team's participation in the Champions League to socialist redistribution in a national league.

    One of Chris's assistants and I immediately started collecting signatures from MEPs and reached the quorum (40 or so) only minutes before the deadline. I still remember us running (well, it was sports policy) down the corridors of the Parliament to the "Tabling Office" where you present bills and amendments, and we were a few minutes late, but the officials were generous. Then came the plenary vote. What continued to be a huge issue: the Parliament's rapporteur, Ivo Belet, was radically against us, but a member of the largest group in the Parliament, the aforementioned EPP, and parties rarely go against their own rapporteur. We narrowly won the EPP-internal vote, which shocked Belet, but when our deleting amendment came to the vote, he gave a thumbs-down sign, which could still have influenced some people. Nevertheless we secured a majority consisting of those preferring subsidiarity (obviously also including my UKIP friends and ODS from the Czech Republic), politicians interested in sane competition policy, and supporters of the wildly popular teams in my camp.

Apart from those two situations, I only got involved with one other "lobbying" effort: the 2006 resolution on EPLA, a predecessor to the Unified Patent Court (UPC). The outcome there was mixed, but the objective was primarily to delay that process (and as of today, there still is no European patent judiciary). At an EPLA conference in London in the summer of 2006, a Commission director said that "generations of students [would] be taught the story of [our anti-software-patent] campaign as an example of a perfect political campaign."

There still is a chance to defeat the craziest aspects of the EU Copyright Directive, but it will take an extremely forceful and focused push. It appears that things went wrong last time the Parliament decided. Now there's only one last chance, and besides the advice you could find between the lines of my summary of how I triumphed over EU idiocies a long time ago, I have some recommendations specific to the EU copyright situation:

  1. Make an institutional argument. In connection with the "restart" motion for the software patents directive (which paved the way for outright rejection as MEPs positioned it as retribution for the Commission's decision not to make a new proposal), the FFII's activists (all of them very idealistic) argued what's "right" while my position paper focused to a greater extent on what would make the Parliament "strong." It was like a forking situation in open source where we tried both, but when they showed both texts to MEPs, everyone preferred mine.

  2. Make a votes-focused argument. There are only two currencies in politics: votes and money (and money is often just a means to secure votes, though sometimes it's an end in its own right, especially in the EP, where numerous MEPs are on corporate payrolls). Tell MEPs (many of whom are seeking reelection this year) that it's the smartest thing for them to vote either the whole bill or at least Article 13 down just so no voters--especially young voters and, generally, Internet users--will be angry. More than at any other point in time, the political establishment fears that EU-skeptical parties may actually form the strongest bloc in the EP after this year's election. You must leverage those fears and sell them on killing the bill so they keep their seats! This will be their last major vote before the election.

  3. Focus on a simple message and demand for which there can be a broad consensus. I would ask MEPs to reject the entire bill because it's the clearest message (then the Commission will have to go back to the drawing board and a new EP, with many EU skeptics, will give them an even harder time) or, if they're hesitant to do what actually made sense in 2005 for the software patents bill, they should delete Article 13. The latter may be more achievable.

    Apparently, some modification was made to Article 11 ("link tax") that may make it more acceptable to Google. And ultimately, Article 11 directly impacts only Google. I absolutely agree with critics of Article 11, such as Berkeley professor Pamela Samuelson (here's a tax-free link to one of her writings on this issue). Article 11 is counterproductive and plain stupid. But if you now want to get the majority you failed to get last time, you need a simpler, clearer, more focused and more powerful message! Your attitude toward Article 11 should be: "This, too, shall pass." You can try to get it repealed after it's failed.

    Article 13 is the much better cause for campaigning purposes. It affects user-generated content (UGC), which is extremely important. Case in point, even my trivia app will sooner or later get UGC, and some other trivia apps already rely on it.

    With respect to Article 13, a strong case can be made for consumer harm as well as for this further weakening Europe. Most politicians don't understand economics, especially digital-era economics, well enough to figure it out themselves, but--apart from the issues raised in this Wall Street Journal op-ed that compares the eurozone's shrinking (since 2009) economy to growth in the U.S. and Asia and the ever lower performance of continental European students in math (in France and Germany, degeneration is mostly due to decades of unselective migration)--Europe's single biggest economic problem is that it doesn't have major digital platforms. There are only two significant European companies that can be considered digital platform companies: SAP (big by European standards but small compared to Silicon Valley and Seattle Sound giants) and Spotify, which loses the more money the more users it has and probably can't stay independent for too long. Successful digital platforms have enormous leverage and benefit from network effects, which makes it hard enough for Europe to catch up, but UGC is essential to digital platforms. The EU shouldn't cut off its nose in order to spite its case by complicating the creation and operation of UGC-centric platforms.

  4. Combat the idea of "compromise" being a virtue here. With the software patent directive we faced the problem that many politicians initially didn't like the idea of outright rejection because they argued politics is all about the ability to find a middle ground. That is, together with the high mathematical hurdle, the reason why the EP hadn't exercised its right to reject a bill at second reading (a right the EP had since the Maastricht Treaty in the early 1990s) before we came and won. But every once in a while, no deal is better than a bad deal. Blame it on the other institutions: the Commission and the Council. Blame it on Axel Voss, the EPP MEP who was appointed as the EP's chief negotiator, though his positions are far from balanced. Alleviate MEPs' concerns, and emphasize the benefits: it's the best shot for reelection.

  5. Appeal to center-right and right-of-center politicians. A large part of the reason why my NoSoftwarePatents campaign was started in parallel to the FFII's and various FOSS organizations' efforts was a positioning issue: the anti-software-patent movement was misperceived as the spearhead of a generally anti-IP movement that wanted "everything on the Internet to be free," as a still-influential German conservative MEP (thus I won't mention her name here) told me in a meeting. For the copyright debate it's very important that you emphasize not only consumers but also creators. This, again, will be easier when giving up on Article 11. With the greatest respect for an organization like EDRI, which is involved with the push against the EU Copyright Directive: they're so radical that even a staffer of the Greens/EFA group in the EP told me many years ago that the Greens didn't want to be seen as too closely associated with them.

    Many MEPs want to be seen as pro-business. You must reach out to them more effectively. Bring in app development companies and similar stakeholders who really want and depend on copyright, but oppose its most insane excesses. If you can't convince MEPs that one can be pro-copyright but against Article 13, and that it's actually good for copyright in general to oppose Article 13, then you probably won't build the majority you need. You'll only get much support from the left, and that's not enough.

  6. Better online mobilization. The NoSoftwarePatents effort was very much about mobilization. MEPs told us that they had never received so many messages (emails, letters, faxes) from voters until the FFII (and, later, my campaign) mobilized "the Internet." At the time, we had to rely on mailing lists. Nowadays, with social networks, there's better infrastructure. But I really don't think it makes sense to focus on the link tax. Focus on Article 13, user-generated content, digital platforms. That one affects far more people (not just Google, and Google can probably live with Article 11 now anyway, though again, it's crazy and I hope it will be repealed after a few years--when everyone knows with the benefit of hindsight that it's counterproductive).

    If you want to mobilize citizens to contact politicians, you need a simple and compelling message. did a great job collecting what will soon be 5 million signatures on, but is not optimized for the final push for rejection. The numbers of signatories will basically impress only those MEPs who are already sympathetic to the cause. But what's key now is to send clearly organic and authentic messages to MEPs (so they can't claim these are just "bots," as some of them have incorrectly said), and to encourage people to request meetings with MEPs in Brussels, Strasbourg, and their constituencies.

    In late 2009 and early 2010, our "helpmysql" campaign (not about legislation, but related to Oracle's acquisition of Sun Micosystems) even broke the Commission's email servers, as we were told in a meeting with then-commissioner Neelie Kroes. We put it in place within only a couple of weeks, even during the Holiday Season.

    I strongly recommend either quickly optimizing and/or for the name of the game at this stage or starting a complementary effort that will make a greater direct impact on MEPs.

  7. Attack mainstream media harder (if necessary). You have all those mainstream media companies--which President Trump often refers to as the "fake news media"--against you. We had a similar problem with our campaign against software patents, not because publishers wanted those patents but because, quite frankly, most news agency journalists were simply not smart enough to figure out that the claim "it's about software-powered devices like washing machines, not about patents on computer programs" was obviously a lie when SAP publicly stated that it wanted the proposed directive because it would protect SAP's "innovations" (which aren't washing machines). When the lie came from the Commission and national governments, the fake news media propagated it as if it were a truth and didn't believe us, just because they were brainless.

    If you give up on Article 11 now and focus on Article 13, maybe that will be a basis to get more reasonable mainstream media coverage of your efforts. I'm not sure because those traditional media companies probably also view UGC as a threat to their business model, but at least there's a chance. Time is not on your side, so you must find out quickly whether, after accepting Article 11, they'll give you a reasonably fair treatment. If not, don't shy away from bashing those publishers. They're backwards-oriented, they're rent-seeking losers, they don't innovate, they're the past and not the future. Make this a story of the winners of the digital age--and consumers are the winners when there's such an abundance of great original content--fighting against an evil scheme by the sore losers, for the sake of Europe's digital future, to the extent Europe has any digital future at all (Europe won't be able to compete with the U.S. and Asia with or without that EU Copyright Directive, but at least it shouldn't be self-destructive).

I haven't been to Brussels and Strasbourg (the two EP seats) in many years, and it's very unlikely, though depending on the circumstances not 100% inconceivable, that I'd go there in the build-up to the final "copywrong" vote to campaign for rejection/deletion. There are still some MEPs who remember the 2005 vote on software patents, and even many of those who weren't there yet in 2005 have meanwhile heard about it. The showdown in Strasbourg or Brussels could become a huge event, like the legendary July 2005 software patents vote, but it takes the right message and turnaround strategy to get a better outcome under even more difficult circumstances (where the strongest argument of the "copywrong" side will be that the result of a "trilogue" is sacrosanct and must be rubberstamped).

Share with other professionals via LinkedIn: