The Internet has brought us one of the greatest expansions of the free flow of information in history, so naturally government bureaucrats think this has to stop immediately. And when it comes to unaccountable bureaucrats getting their way, it’s hard to beat the European Union.
Hence Wednesday’s preliminary vote on a set of EU Internet regulations that includes something called Article 13. This is ostensibly a measure to enforce copyright protections, but it is drawn so preposterously overbroad that it will catch everybody.
A proposed new European copyright law wants large websites to use “content recognition technologies” to scan for copyrighted videos, music, photos, text, and code in a move that that could impact everyone from the open source software community to remixers, livestreamers, and teenage meme creators.
This law is calculated to destroy the free-wheeling Internet in five ways.
1. It restricts the flow of content on computer networks.
Article 13 reverses one of the key legal doctrines that allowed the Internet to thrive: the idea that computer networks are not “publishers” and are therefore not liable for the actions or statements of their users. This means that you can sue an individual user for libel or copyright infringement, but not the e-mail service or bulletin board or social media platform on which he did it. This immunity made it possible for computer networks to open up a floodgate of content produced by independent individuals, without requiring service providers to serve as editors or moderators.
Making them moderators again would not only throttle the volume of material that can be published (since there are a limited number of moderators) but would also set up the service providers as gatekeepers of content. Yet that’s exactly what the bureaucrats want, which lead us to the second consequence.
2. It creates an Internet surveillance state.
Article 13 would require big tech companies to establish the infrastructure to monitor and control all communications that go through their networks, which is precisely what they are already doing too much of. As one opponent of Article 13 puts it, this “further entrenches ubiquitous surveillance into the fabric of the Internet.” Which leads us to the next point.
3. It entrenches the big media giants.
The expense of setting up the electronic filters mandated in Article 13 is so great that tiny little startups can’t do it. Only the giants can do it.
The technology to filter out memes—or for that matter any copyrighted material—would require a significant investment of time and money to develop. This means that we could see the detection of copyrighted material outsourced to companies with the means to carry it out effectively—that’s likely to be US internet giants such as Amazon and Google.
But wait, it gets worse. Along with Article 13 is Article 11, dubbed the “link tax,” which requires websites to buy a license from established publications in order to quote, excerpt, or possibly even link to their material. Ostensibly, this is to protect publications from sites that “curate” content by stealing it, providing a link to the original source only after they have excerpted all of its key information and gathered all the Web traffic for themselves. But the egregious abuse of excerpts is already illegal. Article 11 replaces existing laws with something much broader and more vague, whose exact scope hasn’t even been defined yet.
The most bizarre claim is that this will liberate publishers from dependence on companies like Google and Facebook, when it will obviously have the opposite effect. “Google can afford a license, [but] there’s no guarantee smaller organizations can.” So Article 11 and Article 13 together have the effect of establishing the big existing players on the Internet as the only legal sources of information, creating a huge barrier to entry against potential competitors.
4. It would outlaw legitimate uses of information.
As another opponent explains, “Automated systems just can’t distinguish between commentary, criticism, and parody, and mere copying, nor could the platforms employ a workforce big enough to adjudicate each case to see if a match to a copyrighted work falls within one of copyright’s limitations and exceptions.” A lot of perfectly legal use of copyrighted material, from “fair use” to parodic use to Internet memes—which it seems almost sacrilegious to outlaw—would be caught as “copyright violations” and users would then have to appeal case-by-case to a small and overwhelmed group of moderators. But once again, it gets worse.
5. It would unleash false and malicious copyright claims.
Article 13 allows for mass uploading of copyright claims but imposes no penalty for making a false claim. This creates an incentive for bad actors to suppress information by targeting it with false copyright claims.
[S]tock-market manipulators could use bots to claim copyright over news about a company, suppressing its sharing on social media; political actors could suppress key articles during referendums or elections; corrupt governments could use arms-length trolls to falsely claim ownership of footage of human rights abuses…. It’s asymmetric warfare:…. Bots will be able to pollute the copyright databases much faster than humans could possibly clear it.
All of these attacks on the free flow of information follow on the heels of a campaign against “fake news” that has been used as an excuse to bring government censorship to the Internet. A good overview of this trend sums it up: “With the potential ability to imprison, bankrupt or put journalists out of business for publishing poorly defined ‘misinformation,’ there is enormous scope for abuse.”
There is one egregious error in the article, though: a reference to “Donald Trump’s popularization of the term ‘fake news’ during the 2016 presidential election.” No, it was the left that originally popularized “fake news” after Election Day. This was their way of explaining away Hillary Clinton’s election loss by blaming it on Facebook and trying to shake down Mark Zuckerberg and force him to reinstall the old media gatekeepers. It was only after the left screamed about “fake news” for a few months that Trump managed to turn the phrase back against them and co-opt it for his own purposes. There’s a lesson there about own goals (to use a very European figure of speech) and about unintended consequences.
But also remember the Law of Intended Consequences. Clamping down on the free-wheeling Internet and giving more power to a few big gatekeepers is entirely consistent with the kind of unchecked bureaucratic power that is central to the modern European Union. What the advocates of big government want, to paraphrase Ellsworth Toohey, is an Internet with one neck, ready for one leash.