The New Testament narrates numerous miracles attributed to Jesus Christ. One of them is the feeding of the multitude: Jesus is described as having multiplied a few loaves and fish so that five thousand people could eat and were satisfied.
The debate over the new EU Copyright Directive towards the end of June 2018 was characterized by a similarly remarkable form of multiplication. But what was being multiplied in this case was not bread or fish, but protest – or rather the appearance of protest.
To begin at the beginning …
In September 2016, EU Commissioner Günther Oettinger put forward proposals for a Directive on Copyright in the Digital Single Market.
Time passed, and Oettinger moved on to a new role within the Commission, but the wheels of bureaucracy continued to churn until the European Parliament’s Committee on Legal Affairs (JURI) was due to vote on the proposed directive.
In the run-up to the vote, observers may have wryly recalled the dictum of German parliamentarian Peter Struck that no bill ever exits parliament in the form it enters it. The directive’s rapporteur Axel Voss (CDU/EPP) had the pleasure of steering a process in which numerous changes and additions to the text were negotiated before it was formally adopted by the JURI Committee and Voss was finally given a mandate to proceed to negotiations with the EU member states.
Julia Reda’s simple slogans
The only member of Germany’s Pirate Party with a seat in the European Parliament, Julia Reda, opposed the proposed legislation from a very early stage. Her campaign grossly oversimplified and distorted the issues at stake. Reda’s “link tax”, coined to attack Article 11 of the directive, is marvellously short and sweet, but that anybody could believe in all seriousness that it would be possible to impose a tax on linking to texts (we know taxes are collected by the tax authorities, right?) is – albeit involuntarily – rather funny.
The battle cries of “upload filter” deployed in opposition to Article 13 of the directive were not much better. Upload filters were not and are still not mentioned in the directive, but the term is eminently suited to stoking fear. And Reda did indeed succeed in her efforts to fool some of her supporters into believing that EVERYTHING on the internet will be filtered in the future if the directive is adopted in its current form and that memes – yes, even people’s much-beloved memes – will all be banned.
What nobody (again) seemed to have read and/or understood
While this was completely at variance with the actual content of the directive, that appeared to be of merely tangential interest. What the directive proposed was that platforms (and only platforms) would be strongly encouraged to enter into license agreements with rightsholders covering user uploaded content.
Responsibility for taking out licenses would rest with the platforms, and end-users would be completely in the clear. The idea was simply that platforms would have a duty to maintain transparency to ensure correct licensing and the proper distribution of payments made for licenses to rightsholders. Under the directive, operators of a platform which had not concluded a licensing agreement would have been liable for unlicensed content on their platforms. How operators chose to keep their platforms clean would have been up to them. But preventing copyright violations would have come within their remit of responsibility.
Had you stayed silent, you would have stayed philosophers (to paraphrase Boëthius loosely)
And that, in a nutshell, is the content of Article 13 of the directive. Not that it mattered a jot; many commentators seem to have persistently shunned the intellectual effort required to read a current version of the draft legislation and understand the legislator’s intentions before piling in to make their own arguments. From the internet associations of the political parties to Sascha Lobo, who wrote not once but twice in Der Spiegel about “censorship machines”. If only the commentators had simply read the draft text that so perturbed them! Then, perhaps, they might have noticed that the users of a platform which had not licensed content would, for the first time, have gained extensive rights including an entitlement to mediation in the event of finding themselves blocked. By that point, at the latest, it ought to have become evident that the cries of “censorship” were misplaced. Perhaps the critics were simply defeated by the challenge of procuring and understanding a current version of the text?
They want censorship machines, or do they not?
But coming back to content-sharing platforms, the real issue here, let us look at one of the most successful ones, YouTube. The directive is interested only in regulating platforms like this, not in open-source platforms or sales platforms.
For years now, YouTube has been using its Content ID system. This system allows rightsholders who submit content to determine what should happen when users view it. The available options span the gamut from monetization (an end user uploads a video with music, for example, and the rightsholder gets a share of any advertising revenue generated) all the way to – please be brave now, Sascha Lobo and Julia Reda – blocking the video. The primary purpose of this system is to prevent third parties from generating revenue with content they have no entitlement to exploit.
What’s more, Copyright Match is now also ready for deployment. This new system resembles a light version of Content ID. Its primary purpose is to assist YouTubers seeking to assert their rights when duplicate videos are uploaded. The first person to upload a video is automatically notified of duplicate uploads and afforded the opportunity to determine how the platform handles these duplicates. The range of options again extends – and please be brave now, dear net activists – all the way to blocking.
Has anybody condemned these options as censorship? Seemingly not. There have been no protests in the streets against Content ID and Coypright Match, and there has been no public outcry over YouTube’s “censorship machines”. Julia Reda, Sascha Lobo and LeFloid, another irate YouTuber, have (right up to the present) refrained from deleting their YouTube channels or adding black sashes of mourning to protest against these upload filters.
The protesters take to the streets
This brings us nicely to the issue of the rallies against the new directive. A demonstration was held, of course. It took place on 24 June 2018 in Berlin. Rather unfortunately for the protesters, it rained that day; otherwise they would have been able to count the usual hordes of tourists at the Brandenburg Gate among their numbers. Under the circumstances, only those who had turned up to protest were counted, an estimated 150 people. As with an earlier demonstration focused on the ancillary copyright of press publishers, the turnout was so low that there were presumably more press photographers than activists in attendance.
Even when they are initiated by the broadest of coalitions, protests like this tend to suffer from the internet’s 1-9-90 rule: 90% of net users are entirely passive, 9% click on “like” buttons now and again, and only 1% actively upload content.
This explains why campaigns like “Right To Remix” have puttered on for years without gathering much momentum: the vast majority of people are simply not interested.
When civil rights protesters play hardball
But those intent on scuppering the directive had not yet exhausted their firepower. What came now was the hour of the bots, the automatically generated emails, the automatically placed phone calls and the miraculous multiplication of protest, or rather its simulation. In the week before the plenary vote in the EU parliament on whether the adoption of the report by the JURI Committee and the negotiation mandate given to Voss should be allowed to stand, the inboxes of EU parliamentarians were flooded with automatically generated emails. Some EU parliamentarians reported having received 60,000 emails. In total, 6 million emails appear to have been dispatched to EU parliamentarians in this fashion. Compare that number to the handful of protesters in Berlin.
Two mail domains were mainly used: Openmedia.org and liberties.eu. Openmedia is an American NGO with Google and Mozilla as premium partners. Liberties.eu is an association of various European NGOs. There is no transparency report on the website.
The picture was repeated on Twitter, where accounts were flooded with spam, but also threats.
What had happened? Sites such as Saveyourinternet.eu had made tools available that enable this kind of email carpet bombing. The supporters of this site include an array of internet lobby groups such as the Electronic Frontier Foundation (EFF). Anyone who believes that the EFF are a grassroots civil rights movement should take a look at this report.
Is it necessary to mention at this point that a large number of the groups orchestrating protests are funded directly or indirectly by groups with an obvious interest in the failure of reforms?
But Wikipedia also jumped aboard the bandwagon. The directive is entirely irrelevant for Wikipedia, which confined itself to condemning it in generic terms as an attack on the free internet Wikipedia understands itself as part of. This was, for all intents and purposes, rather like BMW owners protesting in response to a recall of specific Volkswagen models ordered by the Federal Motor Transport Authority and citing it as evidence of a general war on the motorist. It can only be assumed that the close ties binding Julia Reda’s office manager and his former employer were able to influence Wikipedia’s stance.
Even Mozilla joined the fray. Newsletter subscribers were invited to phone EU parliamentarians. The “Call now” button even appeared in four different places in a newsletter. And of course the calls were free. The costs were small change for an organization which received over 500 million dollars in royalties for integrating search engines into its browser Firefox in the year 2016 alone.
EU parliamentarians reported that callers had followed scripts. The phone calls, just like the emails, relied on prefabricated phrases. It was just too bad that many callers could make little response to questions or counterarguments.
This persistent harassment via email, telephone and Twitter took its toll on EU parliamentarians. Many were absent during the vote. Perhaps they took the threat of murder so seriously that earlier proponents of the legislation now opposed the directive, or perhaps they even believed the canned protests had been real. Whatever the circumstances, the outcome was clear: the motion to allow the trilogue negotiations to proceed received only 278 of the necessary 299 votes.
What do these events signify for political processes?
Individual citizens are perfectly entitled to voice their concerns, doubts and problems in dialogue with their representatives in the EU parliament. But this case makes a mockery of this right. Emails citizens had formulated themselves were bound to be lost without trace in the deluge of automatically generated texts. And that, in fact, is exactly what this orchestrated protest was designed to achieve: the drowning out of nuanced arguments by a vast wave of simulated protest.
Just like in the Bible: a miracle of multiplication. In this case, however, no miracle-working was involved; the heavy lifting was performed by technology. By DDoS, to be precise.
Is this the future? Are those with better technology destined to win even when the better arguments are not on their side? If that comes about, minorities will find it very difficult to make themselves heard – let alone to participate in the process of political decision-making – unless they are able to afford the requisite technology. But even assuming equal access to resources, surely the weighing up of arguments should still count for more than the number of preformatted spam emails, threats or scripted phone calls that can be mustered?
Now, at the latest, the EU must analyse these events in depth and take precautions against politics being hacked in this fashion again.
Governance by shitstorm cannot be in the interests of democratically elected governments, and it most certainly cannot be in the best interest of voters.
Volker Rieck is managing director of the content protection service provider FDS File Defense Service, which works for numerous rights owners. The company also prepares studies on piracy and supports law enforcement companies with the data it collects.
Volker Rieck blogs regularly on Webschauder and from time to time on the US blog The Trichordist on various aspects of unregulated content distribution. His articles also appear on Tarnkappe.info.
Update 29.8.2018: In a first version it was wrongly referred to Opendata.eu.