Wednesday, March 13, 2019

Official concession of upload filters by German government destroys credibility of proponents of Article 13 of EU Copyright Directive

The European Parliament will hold its plenary debate on the Directive on Copyright in the Digital Single Market on March 26, suggesting a plenary vote later that day or the next day. Further headway has meanwhile been made against Article 13, though probably still not enough. For an example, it's now likely that the number of mostly (but not exclusively) young people taking to the streets on March 23 will be in the six figures. The Berlin demonstration alone (which will be the main one) is now expected to have at least 20,000 participants, with more optimistic projections being in the range from 40,000 to 50,000. By the way I'm too busy to go to Berlin, but I will participate in the Munich demonstration that same day. Recently, additional MEPs have declared their intent to vote against Article 13, including the small-in-numbers but well-respected and influential Luxembourgish delegation to the center-right European People's Party (EPP) group in the EU Parliament.

Proponents of Article 13 might still succeed, but they'd pay dearly for it in the EU elections in May--and way beyond those elections. We're talking about generations of voters who have a pretty good idea of what's going on and are not going to take it lightly. There's quite some awareness now among teens, twens, and people in their thirties and fourties for the issue--and there'll be a lot more awareness among those age groups soon. No political grouping would bring up more voters against itself than the EPP, and it's the only political group that is still largely (apart from some pockets of resistance) in favor of that crazy Article 13.

What might happen is that the EPP will later remember its support of Article 13 as the biggest mistake in the history of that Europe-wide group of conservative (partly in name only) parties that for some time has been the most powerful political group in the EU.

If the EPP's national campaign managers in countries with a strong, vocal and growing anti-Article 13 movement aren't either totally incompetent or sleepwalking through this year's elections, they will already have realized that this is the number one problem they face, even eclipsing the issue of migration because of the power of the Internet.

The German government has just provided a silver bullet that may still persuade a majority of MEPs to vote against Article 13:

The big issue here is whether or not website operators and app makers would have to install upload filters in order to minimize their risk of being exposed to strict copyright liablity under Article 13 for failure to take measures necessary to prevent infringement. So far, Axel Voss MEP (EPP/Germany) and his brothers-in-arms have insisted that upload filters aren't mentioned explicitly in the proposed text. It's a particularly sensitive issue in Germany because the coalition agreement between Merkel's CDU (an EPP member party), its Bavarian sister party CSU (also an EPP member party) and the SPD (S&D group in the EP) explicitly speaks out against upload filters, yet the Merkel regime voted in its favor at the EU level (in the EU Council), over a rather half-hearted objection (more of a PR stunt) by the SPD.

Merkel's spokesman Steffen Seibert even tweeted a banner that said the bill doesn't require upload filters.

But what's happened now exposes Merkel and her minions as having misled MEPs and the general public all along. An official question submitted by a member of the German Bundestag (national parliament), the libertarian FDP's Konstantin Kuhle, provoked the following answer by state secretary (in the Federal Ministry of Justice) Christian Lange (SPD):

"In the federal government's view it appears likely that algorithmic measures will have to be taken in connection with large volumes of data for practical reasons alone."

"Algorithmic measures" obviously means "upload filters." There's no denying anymore. They aren't even trying.

The Federal Ministry of Justice is run by the social democrats, and when that ministry answers a question related to one of its areas of responsibility (intellectual property policy has always been handled by the Federal Ministry of Justice, with the Federal Ministry of Economic Affairs merely being able to provide input of limited influence), it's allowed to do so on the federal government's behalf--even if other parts of the government disagree.

The most likely reason would be that the social democrats decided to drop this bomb on Article 13 in retaliation for Merkel's breach of the coalition agreement. It's less likely that Merkel's party has meanwhile concluded that it stands to lose from Article 13, which Germany wouldn't have supported if not for a horse trade between Merkel and Muckron (yeah, that spelling is intended). In that case, they might be secretly supportive of the statement by the Federal Ministry of Justice and also hope that things would now fall apart in the EU with respect to Article 13. But I guess this was done by the SPD and won't be viewed favorably by Merkel's party.

Even Frankfurter Allgemeine Zeitung (FAZ), an economically conservative (though socially rather leftist) newspaper that used to spread the no-upload-filter propaganda now considers it ridiculous to deny that Article 13 involves upload filters. FAZ even violated ethical standards by publishing a pro-Article-13 op-ed by a "creative industry" (meaning music or whatever) lobbyist without properly disclosing his conflict of interests. And FAZ's EU reporter Hendrik Kafsack has traditionally been either unwilling or unable to figure out the legal and practical truth about intellectual property legislation: in the software patent context, he was adamant about the Commission's and the EPP's lie that it wasn't about patents on software, only patents on software-controlled devices like washing machines, though SAP placed a big advertisement in an EU publication in which SAP, which obviously never made washing machines or similar products, stated the directive would cover its "innovations." I only had one conversation with him a long time ago and can't tell for sure, but he may just lack the knowledge and skills to figure these things out himself, and when I read what he writes about the copyright bill, I also find fundamental misconceptions there.

The article I just linked to--which says that it's ridiculous to deny the upload-filter issue--was authored by a Berlin-based FAZ editor who apparently has a much better grasp of the issues. By the way, FAZ also made a major IP-related mistake in December when they wrote about Apple losing a lot of business in the final days of the last Christmas Selling Season because of that Munich patent injunction secured by Qualcomm on a fake basis. If the person who wrote that piece had even had a minimum of knowledge about how injunctions (not just patent-related ones) are enforced in Germany, he'd have known that enforcement prior to resolution of the appeal requires a bond or deposit, which always (and in this case it was about $1.5 billion) takes more than a day to make so the injunction can actually be served on the defendant in the form of a letter demanding immediate compliance.

At least they have now, at long last, recognized their mistake regarding Article 13. With software patents they never retracted anything, not even after we had defeated the liars. That's progress.

Many German EPP MEPs do pay attention to what FAZ writes. In the best case, some of them would ask Mr. Voss some tough internal questions now about what he's been saying for many months.

Unlike many Article 13 opponents who bash or even insult Mr. Voss, I actually have a lot of sympathy for him. Because of my pro-copyright positions in connection with Oracle v. Google, I've also suffered a couple of shitstorms, which wouldn't have happened if the lower court (Northern District of California) hadn't made some bad decisions that the higher court (Federal Circuit), which arrived at the very same conclusions regarding copyrightability (first appeal) and fair use (second appeal) as I did, found erroneous. In fact, before Mr. Voss became the lightning rod for Article 13 opponents, I was the #1 shitstorm victim among people voicing pro-copyright positions. But even I oppose Article 13. And if enough people take to the streets on March 23, as I will, maybe a miracle will still happen. I've seen those miracles in similar situations.

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