Friday, April 5, 2019

Trending hashtag proves IP policy nowadays has potential to weaken a government party for many years, if not decades

Long gone are the days when intellectual property policy was shaped by a few experts in backroom meetings--experts who spoke the same language, wore the same kinds of clothes, and had largely congruent ideas for the future. That has changed. The EU software patent debate, from which my allies and I emerged victorious, was a first in political history: all of a sudden, there was public debate and an absolutely unprecedented level of voter engagement. (That was already the case before I joined the fray; I just brought a commercial perspective and incremental tactical flexibility to the table.)

The Anti-Counterfeiting Trade Agreement (ACTA) was the next example (I wasn't involved), and the most recent--and still ongoing--one is the EU Copyright reform process (I only helped out in some limited areas toward the very end of the multi-year process).

The recent vote that went awry in the European Parliament (a dozen MEPs later declared in writing they had pressed the wrong button) was described by the proponents of Internet upload filters and similar anti-innovative measures as the de facto closure of the process. But the fire is still raging, and the opera isn't over until the fat lady sings: the EU Council has yet to make its formal decision. A mere formality, say the proponents. But that formality is costing the German government coalition parties dearly, and while Merkel's Christian Democratic Union/Christian Social Union (CDU/CSU) used to bear the brunt of people's well-founded outrage, the junior coalition partner, the Social Democratic Party (SPD), is now in serious trouble as the SPD totally fell out of favor with young German voters yesterday evening.

#NieMehrSPD, a vow never to vote for the SPD again in one's lifetime, became the #2 trending hashtag on Twitter's German-language service yesterday, second only to the wildly popular Germany's Next Top Model casting show.

The SPD is going to get little voter support in next month's EU elections, and is going to have catastrophic results in some regional elections later this year. It could be that pollsters (though they rarely think outside their traditional boxes, which is a large part of the reason why they get things wrong by huge margins all the time) will attribute the SPD's lack of popularity with young voters at least in part to the #Article13 (now #Article17) debate. More likely, they'll remain clueless. But the effects of the SPD's strategic error will last for a long time, regardless of whether the pollsters will ever find out.

What happened yesterday is that the SPD, even though its European Parliament delegation (not its sister parties in other countries, though) overwhelmingly voted against upload filters, sided with its coalition partner, Merkel's CDU/CSU, in yesterday's debate in the Bundestag (Federal Parliament) over two motions for non-legislative resolutions calling on the German government to oppose the bill in the EU Council. With Italy, Poland, the Netherlands, Finland and Luxembourg already opposing the bill, it would just take a German No to reopen the debate and start a quest for a better mouse trap. I translated the libertarian Free Democratic Party's (FDP) motion, which was masterfully written by their digital economy expert Jimmy Schulz, and I can assure you that the Left Party's motion, which I saw only yesterday, was at the same level and, unlike what some might suspect, absolutely not ideological. Either motion made clear that creatives should receive proper protection on the Internet, but that this particular bill would put Europe's Internet and IP policy on the wrong track.

The SPD used to blame everything on Merkel and her party. There was a deal with France that involved the Nord Stream 2 gas pipeline that resulted in Germany's consent to upload filters despite a clear wording in the CDU/CSU's written coalition agreement with the SPD; and the CDU's Axel Voss MEP rose to negative fame as the European Parliament's rapporteur in charge of the directive, while the SPD, not unanimously but overwhelmingly, voted against the bill in the European Parliament's March 26 plenary vote. Also, the SPD's Tiemo Woelken ("Wölken" in German) MEP was really fighting harder for our cause than anybody else save the Pirate Party's Julia Reda MEP.

But the European Parliament vote didn't solve the problem, while the German government could still remedy the situation in the EU Council (the actually more powerful EU legislative body, which is controlled by the Member States' national governments). The EU Council wouldn't have a qualified majority for the bill without the German government, and the German government wouldn't have a majority in its national parliamentary democracy without the SPD. Plain and simple. Furthermore, the SPD's Katarina Barley is the Federal Minister of Justice, and IP policy falls within the remit of her ministry (other ministries have a secondary role at best in this context). She's also the SPD's top-listed EP candidate (after the EU elections, she'll step down in Berlin and make the leap to Brussels and Strasbourg). One of her predecessors in office, the FDP's Sabine Leutheusser-Schnarrenberger, once resigned because she couldn't possibly support a legislative measure (relating to eavesdropping). Mrs. Barley, however, is anout to down in history as someone who mistakenly thought she could have her cake and eat it, and wherever she will go and whatever she may do in the future, the Internet generation's thumbs-down for her will be a given--unless she recognizes the situation and fixes the problem.

Should Sweden indeed change it state from Yes to No in about a week, the situation in Germany will heat up again for sure.

The motions that the German parliament debated yesterday evening represented--as the Left Party's Petra Sitte said in her opening statement--an opportunity for the SPD to alter course while it still can. The SPD could have supported those parliamentary motions in order to provide a democratic justification for an admittedly unusual about-face by Germany at the EU level. The motions would have paved the way for a search for a better approach than the ill-conceived bill that is on the table and scheduled to be adopted on April 15. Of course, a government coalition party voting in favor of a motion by the opposition would consitute sort of a government crisis--but it could have been contained because the rest of the EU wants Merkel to stay in office as long as possible, so even Macron would have rather given up on Article 13 (now Article 17) for the time being than push Merkel down the political cliff over copyright.

What the SPD decided--and what triggered the shitstorm that made #NieMehrSPD the number two trending hashtag in Germany at prime time--was, however, to cave. In a transparent procedural maneuver, they SPD joined the CDU/CSU--in the debate and in the vote--in effectively voting both motions down by referring them to the parliamentary committees, where the process will take far too long for the actual plenary vote (on substance) to be held before the EU Council will (normally, though nothing is necessarily normal anymore) have adopted the bill.

As per a suggestion by a former Pirate Party MEP from Sweden, Amelia Andersdotter, I live-tweeted the most important soundbites from the debate and shared my observations in English. At times the livestream slowed down due to the heavy load. Germany's leading YouTubers were all following it, and one of them, Herr Newstime, had already announced a few days ago that he left the SPD after having been a member for well over ten years.

The SPD's doublespeak has failed. They--and particularly Mrs. Barley--apparently thought they'd get away with schizophrenia, saying No in the European Parliament but Yes in the EU Council (instead of holding the CDU/CSU to the coalition agreement). The EU Council has little visibility, though in this particular context, a large number of mostly young people learned Council lingo like "COREPER" and the final adoption of the copyright bill will definitely get an unprecedented level of attention for that kind of procedural step (while I don't expect next weekend's demonstrations to be nearly as large as the one at which I spoke on March 23). But the German Bundestag has great visibility, thus the #2 trending hashtag.

Before anyone claims that this was a fake campaign or a mob of bots or whatever, let me launch a pre-emptive strike against any such conspiracy theory.

Axel Voss, the controversial German conservative Member of the European Parliament best known for his push for Internet upload filters, alleged Google's strategy to influence legislation in this context was "government by shitstorm," when in reality he has no one but himself and the people in charge of his party delegation's Twitter account to blame. Google, Facebook or any other Internet company played no role in the shitstorms he referred to: in fact, those shitstorms started within seconds of some stupid and/or offensive utterances, and anybody who's ever had a real job and dealt with companies of any size knows that even a startup couldn't orchestrate an instant shitstorm, much less a large and bureaucratic organization.

Google is the new Russia in this regard.

Mr. Voss's Christian Democratic Union (CDU) has already gone through plenty of shitstorms in connection with Internet policy, including that a few years ago Merkel referred to the Internet as "Neuland" ("new (unchartered) territory"). There actually is an entity named #CNETZ that is affiliated with the CDU and its sister party, the Christian Social Union (CSU), and their understanding of what makes the Internet--and the Internet economy and community--tick is so much better than that of the CDU/CSU's MEPs that the difference can't ben even be quantified by means of a factor. But ultimately, the CDU/CSU makes decisions that have consequences, while #CNETZ merely advances recommendations, and voters who care about Internet policy focus on the bottom line: on what ultimately comes out of a political process. That said, #CNETZ is an entity with which I believe we should engage in constructive discussions going forward.

Despite #CNETZ, the CDU/CSU is simply not an option for the Internet community in the foreseeable future. Damages control is all that it can achieve, and even that one is going to be hard.

The SPD, however, has Tiemo Woelken MEP--a lionheart in the European Parliament and a sheep at home. He's young, he's a career politician, and he owes his seat in the EP to a self-contradictory party with a backwards-oriented leadership that believes a hashtag is a regional dish or music style.

Mr. Woelken is displaying his disappointment, and I can see why he's brokenhearted, but what I've instead encouraged him (via Twitter) to do is to use the trending hashtag as ammunition in the internal fight. He didn't publicly call on his colleagues back at home to vote for those motions; maybe he did so privately (I'm sure that if he had any communication in recent days with anybody in Berlin, he will have done so), but that's not enough. He's not enough of a maverick who would openly oppose the party line. And that's why I think it would be morally, but not strategically, appropriate to feel much sympathy for his misery. Life's unfair--after the accidental EP vote and the SPD's acquiescence to the CDU/CSU's breach of the German government coalition agreement, our anti-upload-filter movement really knows.

It's unlikely, but nothing is 100% impossible in politics if it's legally possible (and even illegal things sometimes happen, but that's another story and not an issue in the copyright reform context), that the SPD will recognize its error. In the age of social media, you can't fool people. They don't buy your crap. They'll be informed, and while the CSU's Alexander Hoffmann demonstrated incredible talent yesterday by defending the indefensible and generously accepting three questions from the parliamentary opposition, all speakers opposing upload filters did a great job, each of them in their own way: I mentioned Petra Sitte (Left Party) before; for the FDP, Roman Mueller-Boehm ("Müller-Böhm" in German); for the Alternative for Germany (AfD), Joana Cotar; and for the Greens, Tabea Roessner ("Rößner" in German). Those four parties cover a broad spectrum, but none of them tried to gain any ideological mileage from the copyright debate: each and every one of them did exactly what our own activists would have said in that same situation. The government coalition parties had little more to say than to ridicule the opposition's concern for the CDU's compliance with the coalition agreement--but that's unrelated to substance, and if any party is now going to be viewed by countless (mostly young) voters and future voters as hypocritical, it's the SPD. Absent a miracle, that is.

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