Wednesday, March 27, 2019

After yesterday's ACCIDENTAL vote, EU copyright bill faces three HUGE legitimacy issues--not counting lobbying and Putin's pipeline

The lesson from yesterday's European Parliament vote on copyright reform is that no one is ever beaten unless he gives up the fight. In fact, the vote was not just very close on whether or not to allow amendments but it turns out we only lost the vote on whether to proceed to the votes on amendments because various MEPs accidentally pushed the wrong button, resulting in an incorrect 317-312 "majority" against allowing amendments! More on this further below.

Going forward, there are actually some opportunities to derail or delay adoption of the directive by the EU Council (by simply delaying adoption into the new EUJ legislative term, new procedural opportunities would arise, and it shouldn't be too hard to delay adoption of an incredibly unpopular measure during the hottest phase of the election campaign). And even if this didn't work out, the efforts going into this would highlight and underscore the illegitimacy an ill-conceived bill with a view to national adoption.

It's not even like we'd have to create facts that delegitimize the bill. The facts are already there, out in the open, well-documented, indisputable, and incontrovertible. It's our job--as the defendants of a reasonable, fit-for-the-future balance between traditional creativity and 21st-century creativity--to take those silver bullets and use them wisely, forcefully, and swiftly.

We have some very powerful silver bullets and I want to focus on only the top three aspects here. I wouldn't emphasize the impact of "lobbying", or of alleged threats by conventional media. Both camps were quite aggressive in their ways, and threats that were made against Axel Voss MEP (and possibly others) are not just unacceptable: they're illegal, and I hope such behavior will have consequences. (I once received a threatening email in the United States when I was fighting there and in the EU against Oracle's acquisition of Sun Microsystems in 2009, from someone who just identified himself as a Sun employee.)

What's certainly helpful in PR terms is the Russian gas connection that Frankfurter Allgemeine Zeitung reported on a couple of days ago. The German government originally opposed Article 13 (now adopted as Article 17), but caved to its French counterpart when France was about to complicate Germany's Nord Stream 2 gas pipeline deal with Vladimir Putin's Russia. However, such horse trades are "par for the course" in the EU. It's useful in political terms because it shows the German about-face was not driven by copyright-related considerations, but not a hard legitimacy issue like the three I'm going to discuss now:

  1. As I mentioned above, the European Parliament's decision to disallow votes on individual amendments (the single most important one of which would have been an amendment resulting in the deletion of Article 13/17) resulted from a voting accident that unfortunately cannot be corrected under standard EU Parliament procedures, yet deprives the decision of whatever little legitimacy it had left after the two issues addressed by the next bullet points.

    Dutch MEP Marietje Schaake highlighted on Twitter "[a] very inconvenient truth about the #copyright vote: after corrections of votes (allowed for the record but without changing the outcome of the vote) there would have been a majority for voting for or against [Articles] 11&13." Tiemo W├Âlken MEP explained this in German. The FixCopyright/ campaigns tweeted the corrected voting record, at the bottom of which one can see the votes that were changed afterwards. Out of a dozen MEPs who changed their vote, most actually wanted to allow votes on amendments, and we'd have had a majority if everyone had voted as they intended. Techdirt also explained this is in a blog post. Cory Doctorow's Boingboing blog talks about this, too (with a particular focus on the Sweden Democrats' MEPs, and they clearly opposed Article 13/17 all the time.

    Even the President of the European Parliament, Antonio Tajani, got confused during the related vote. In fact, he said so during the session.

    We have to make a distinction here between procedural law and politics: EU procedural law doesn't provide for a way to repeat the vote, but that doesn't mean that anyone can claim an EP majority wanted Article 13/17. Maybe the amendment to delete Article 13/17 would have succeeded; maybe it would have been defeated. We don't know because of some people's accidental votes.

    This accident in the European Parliament would actually make it politically much easier to push for delaying the Council vote and restarting the legislative process along the lines of what I outlined in my first blog post after the vote.

  2. The European Parliament, as an institution, wasn't neutral and fair. It published a propaganda video created by pro-Article 13 lobbyists. It's also questionable why (or, at a minimum, rather uncommon that) the Parliament's administration allowed a "wine & dine" session by the "yes2copyright" campaign in the Parliament during a plenary session. And this tweet by the campaign o a #yes2copyright T-shirt at the entrance of the plenary also suggests a lack of impartiality--as does the fact that the President of the Parliament declined to accept a petition signed by 5.1 million citizens.

  3. In Germany, what's a far bigger issue than the "Putin connection" (especially since there's obviously no reason to assume he'd want the EU to require upload filters) is that the CDU/CSU/SPD coalition agreement contained a commitment to avoid an upload filter requirement. Merkel and her minister of economic affairs, Peter Altmaier, did a deal with France that was irreconcilable with the coalition agreement, and that's why the SPD, which distanced itself from the decision, can now be reasonably required to derail or at least delay adoption of the bill by the EU Council. The breach of the coalition agreement gives us leverage against the SPD and gives the SPD leverage against CDU/CSU. But if we don't leverage it, the SPD won't have any ammunition either.

It's great that a new round of demonstrations--with three big ones (Munich, Berlin, Cologne) instead of a mix of big and small ones--is being planned. That can have an impact. But it will take more than that to turn this around.

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