Category Europe

The CJEU goes bonkers again…?

I am very much not a fan of the European Court of Justice and their whimsical way of making up laws which bear little relation to anything actually legislated.

Last week they were at it again, “banning” open wifi hotspots because they make copyright infringement too easy. The court said that if users need a password, and hotspot owners record their identity, copyright infringement will be reduced.

I am wondering if this time they accidentally got it right.

I’ve written before about the problem with safe harbour laws which protect service providers on the internet by absolving them of any liability for the users of their services.

The intention of this was understandable – why should someone be liable for something they cannot have any knowledge of – like copyright infringement, for example?

But the effect was catastrophic. It led to the absurd fandango of “notice and takedown” whereby copyright owners have to try to police the whole internet and then send notices to service providers to remove content.

The value of this, almost literal, get-out-of-jail-free card is shows in the fact that Google claims, at the time of writing, to have removed 1.79Bn URLs from search in response to these notices. This is a gigantic undertaking yet they still prefer this way of working to anything more sensible which might prevent infringing content appearing in the first place.

The problem with safe harbours for me has always been that they only do half the job. Sure, fine, fair enough, don’t make service providers liable for something they didn’t do (although in other areas of the law – nightclubs for example – service providers have exactly this liability). The liability, in copyright safe harbour regimes, is firmly with the person who did the bad thing in question.

Unfortunately, although service providers can use the law to put their hands out and say “not my fault, guv”, they are usually unable to point to the person whose fault it is – their customer, the person to whom they provided a service and who used it to do something illegal and who is liable in law for their actions. Even if they can, they will frequently make it as difficult as possible to discover.

So the safe harbour, while trying to limit a risk (which, at the time the law was written might have seemed unmanageable – although current technology makes it a simple matter), actually creates a thick shield behind which pretty well anyone can do pretty much any infringing they like, safe in the knowledge that there will, with vanishingly few exceptions, be any consequences at all. In practice the worst outcome will be that the infringing content get removed.

Copyright infringement is thus a zero cost, zero consequence activity on the internet thanks to safe harbour laws.

Many businesses have been founded to take advantage of this loophole and many fortunes have been made – just not by copyright holders who provide the raw materials.

I’ve always thought that safe harbour laws could be hugely improved if, in order to get the legal protection from liability, the service provider needs to have made at least some effort to be able to identify the person who is actually liable – the user. In return for immunity, they would have to be able to lift the anonymity of the alleged wrong-doer. Again, not unprecedented.

And, as far as wifi hotspots are concerned anyway, the CJEU seems to agree.

The court might have come up with a rather clumsy and faffy way of doing it but this is a change which, if applied more broadly to the copyright safe harbour, would go a very long way to re-balancing the internet and restoring creativity to its proper place near the top of the internet value chain.

So I find myself in the unaccustomed position of agreeing with the CJEU on one of their copyright rulings. It won’t last.

Who’d have thought China would be the defenders of copyright?

When I was a nipper, trying to licence rights in various things, it was widely reckoned that it wasn’t worth trying to do business in China because they pretty much ignored copyright there. If they wanted to use something they just did, without asking first.

Whether that was an unfair generalisation or not, the same cannot be said now. Here’s news of a judgement in China against Apple.

In short it says that Apple is responsible for third parties uploading infringing content into Apple’s systems. In other words, the basic principle of copyright law – that you need permission before you use someone else’s stuff – is being upheld in China, and just pointing the finger at someone else doesn’t get you off the hook.

That might sound like common sense but that same principle has been all but eliminated on the internet in the USA and Europe (and so most of the world) by ill-conceived legislation and an avalanche of business models which aim to enrich businesses by exploiting other peoples work without paying.

How different the internet would be now if the common-sense of copyright still applied everywhere.

How ironic that China, not the USA and Europe, is now the state upholding the basic principles which underly professional creativity.

Perhaps they understand what the USA and Europe seem not to – that without economic incentives for creators, creativity and the creative economy cannot thrive and no amount of tech startups can compensate for that.

The French fancy making life hard for Google, but are they kidding themselves?

After the revelation that withdrawing from Google News seems to do little (if any) damage to publishers, Eric Schmidt has been in France trying to persuade the President not to allow news publishers to charge Google for including their content on Google News.

Google says such a move would “threaten the very existence” of Google. A feeble protest, and an overblown threat. As if anyone thinks such a thing could kill Google; but even if it could why should anyone care? If Google isn’t smart enough to know how to innovate their way past challenges then maybe their days are numbered anyway.

Google also say that if the French persist with this they will just stop including French content in Google News. Based on the Brazilian experience that’s not much of a threat, since the French publishers probably wouldn’t feel much impact at all.

More intriguing is why the publishers don’t just withdraw their content rather than ask their government to get involved. They can do it any time they like; nobody forces them to be included in any Google search.

It might sound like a wizzard wheeze to get the law changed to force payment but there’s a flipside. If such a condition is imposed by law rather than negotiation, it could end up making Google’s access to their content a right, as long as payment is made.

I think control should stay with publishers, they should set terms and prices, the government should provide the framework within which they do so and then stand well back.

As soon as government start interfering, treating different categories of content differently, setting prices or terms or anything else bad things happen. The market, such as it is, gets locked in to a particular way of working and it destroys future innovation and competition. And this market hasn’t even got started yet, we shouldn’t force old age on it quite yet.

I know French (and German, and other) newspaper industries are desperate for revenues, and easy quick ways of getting them are attractive, but this sort of thing is a last resort. Traditionally they are reserved for when everything else has failed.

There are a few things to try first. Here are some suggestions for beleaguered newspapers trying to work out how to deal with search.

Be brave.

Withdraw your content from Google News. Maybe even from Google search (leave enough behind so people searching for your title can find it). And other search engines too. Since you get so little money from those sources, you’ll be risking little. And you can turn it back on easily enough.

If a search engine offers to make it worth your while to include your content in their product, negotiate with them. Do a deal which works for you – payment, helping sell subscriptions, ad share, whatever.

Tell your readers about it, why your content is in one place and not another. Point out the gap in the results they get from the search engines which don’t want to do a deal.

If none of them want to pay you, use them to deliver what you need, not what they need. Put enough stuff in them to attract the attention you need, and no more. Experiment with the best way to do that, and constantly refine your approach. Use other channels and relationships to attract users. Ask your users to pay, and work hard to make sure your product is worth paying for. Spend your SEO budget on other kinds of marketing, or just save it.

Just do something. Stand up for yourselves and the value of what you do.

Make a market.

Stop being so impotent and stop asking governments to load the dice in your favour.

The law you need is already there; just start using it.

Some “facts” from the myth-busting Europeans

Here’s an odd press release put out by the European Commission. It contains what it says are ten “facts” about the media and content industries.

Strangely, the release doesn’t back up any of these “facts” with “evidence”, “research” or “sources” (other than a tiny link to this page which in turn puffs a report which says it aims to “offer a reliable set of data and analysis” about the media and content industries).

The recipent of the press release is presumably required to read the 167 page report for themselves in order to understand the basis for the “facts” it contains. Or, more likely, not bother and just accept the “facts” at face value.

That doesn’t mean they’re wrong, although one or two of them seem odd to me based on my own knowledge and experience.

Some seem depressingly plausible (“fact” 3: 70% of music sales are digital, but only 35% of revenues, source unexplained; “fact” 8: power has shifted from production of content to distribution) and should worry anyone who cares about creativity.

Others seem completely vague and strange (“face” 6: In most cases [the decline of the printed press] started earlier due to changing patterns of consumption and may also be the result of a more competitive market with reduced profit margins and decreasing prices) and offer no actual facts to even attempt to verify.

This seems strange coming from the European Commission, an institution so sensitive about inaccurate or mis-interpreted “facts” about itself and its behaviour that its UK office has a prominent “Mythbusters” section on its website to try to rebut such stuff.

I wonder why they thought these “facts” would be helpful and what they are supposed to achieve. Heaven forfend that they might result in vague assertions being presented as actual “facts” as a consequence of having the Comission’s good name attached to them.

Perhaps they might care to update their website with sources of the data they have used to compile their “facts” and remove any which are, in reality, just opinions or assertions.

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