Open Source, Communities, and the Incoming New EU Copyrights Regulations

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Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby CrocoDuck » Fri Jun 01, 2018 8:10 pm

Inspired by this thread, I wanted to start discussion to essentially track this new controversial proposal, see what you think about it and, if it is alarming as it looks like, how to take action. A good place where to start is the recent GitHub statements:

https://blog.github.com/2018-03-14-eu-p ... ters-code/
https://blog.github.com/2018-04-30-eu-u ... -response/

And this:
https://savecodeshare.eu/
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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby khz » Sat Jun 02, 2018 6:59 am

Websites which store and provide access to content for non-for-profit purposes, such as online encyclopaedias, scientific or educational repositories, or open source software developing platforms, are also not included.

http://www.consilium.europa.eu/en/press/press-releases/2018/05/25/copyright-rules-for-the-digital-environment-council-agrees-its-position/

####

(37a)
The definition of an online content sharing service provider under this Directive targets only
online services which play an important role on the online content market by competing with
other online content services, such as online audio and video streaming services, for the same
audiences
. The services covered by this intervention are those the main or one of the main
purposes of which is to provide access to a large amount of copyright
-protect
ed content
uploaded by their users with the purpose of obtaining profit therefrom, either directly or
indirectly, by organising it and promoting it in order to attract more audiences. Organising
and promoting content involves for example indexing the conte
nt, presenting it in a certain
manner and categorising it, as well as using targeted promotion on it. The definition does not
include services whose main purpose is not to provide access to copyright protected content
with the purpose of obtaining profit f
rom this activity. These include, for instance, electronic
communication services within the meaning of Regulation 2015/2120/EU, including internet
access providers, as well as providers of cloud services which allow users, to upload content
for their own use, such as cyberlockers, or online marketplaces whose main activity is online
retail and not giving access to copyright protected content. Nor does this definition cover
websites which store and provide access to content for non
-for
-profit purposes, such as online
encyclopaedias, scientific or educational repositories or open source software developing
platforms which do not store and give access to content for profit making purposes. In order
to ensure the high level of copyright protection and to avoid
the possible application of the
liability exemption mechanism provided for in this Directive, this Directive should not apply
to services
the main purpose of which is to engage in or to facilitate copyright piracy.

(5)
‘online content sharing service provider’ means a provider of an information society service
whose main or one of the main purposes is to store and give the public access to a large
amount of works or other subject
-matter uploaded by its users which it organises and
promotes for profit
-making purposes.
Providers of services such as non-
for-
profit
online encyclopaedias, non-
for
-profit educational
and scientific repositories, non-
for
-profit open source software developing platforms, as well
as internet access service providers, online marketplaces and providers of cloud services
which allow users, i
ncluding businesses for their internal purposes, to upload content for their
own use shall not be considered online content sharing service providers within the meaning
of this Directive;

http://www.consilium.europa.eu/media/35373/st09134-en18.pdf
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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby CrocoDuck » Sat Jun 02, 2018 8:52 am

Thank you khz.

The EU reacted to the first wave of "engagement" from public opinion by, as you report, introducing exceptions to Article 13, the part of the norm that introduces the "Content Filter obligation", so to speak. I think this is extremely unsatisfactory.

1) Law should be equal for everybody. This is a law that targets few, and saves others by exceptions. Such laws are not right.

2) More importantly: to my understanding exceptions cover non-profit organizations only. GitHub, for example, stores copyrighted material (code) for profit: GitHub is not a non-profit organization. So it would fall out of the scope of the exception, and it would have to implement the filters. Many open source service providers are really not non-profits: think about Canonical, Red Had, Suse, and they deal with copyrighted material. How their operation would be impacted in Europe? In essence, the exceptions above seem to be able to save Wikipedia style endeavours only.

3) Monopoly: OK, let's assume open source is safe, as the exceptions are adjusted so that all open source, even the profit one, is safe. What about being able to create an open source music and video streaming service? Or social network? What happens to diaspora? Mastodon? Peertube? Maybe they will be saved by being non-profit organizations (those that actually are) or Open Source. And here you see why Exceptions are bad: why they should be spared if they offer the same service as Facebook, Twitter, YouTube? What good this will make? Piracy will just shift there: the norm will become useless. Maybe, since they are streaming services, they will fall under the scope of the norm even by being Open Source and possibly non-profit? Still, and maybe even more importantly, what about bandcamp or similar small players in this business? Article 13 has the capability of ending up gifting the whole market to the few tech giants that have the possibility to implement these filters, and relegate the other smaller players to not being able to operate in Europe. In essence, even if open source is made safe, the rest of Europe is relegate to Google-Facebook-Twitter-Microsoft-Apple monopoly.

4) Freedom of expression as an user on the targeted platforms: Let's assume I still like to write on Facebook, even if everybody in his right mind should perhaps just get rid of it. Anyway, I think you all seen the ease with which YouTube content filter flags false negative cases which are just fair use of copyrighted material. False negatives would be produced in great number, and they would censor your content automatically. Then, it will be a painstaking process to have them back up in case they were legal in the first place.

The more I look at it, the more I believe Article 13 should be completely removed. YouTube style content filters should not be mandatory. By the way, filters are not explicitly mandatory, but the norm says that the service provider is liable for copyright breach unless they implement all the tools to prevent it, which equates to mandatory in reality.

Do you guys believe that I understand the above correctly?
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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby khz » Sat Jun 02, 2018 1:09 pm

I have no idea.

Possibly Offtopic: "Microsoft has been talking about buying GitHub, a startup at the center of the software world last valued at $2 billion" >> https://www.businessinsider.de/2-billion-startup-github-could-be-for-sale-microsoft-2018-5?r=US&IR=T
(German: https://www.heise.de/newsticker/meldung/Microsoft-will-angeblich-GitHub-kaufen-4063732.html)
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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby CrocoDuck » Sat Jun 02, 2018 1:16 pm

In addition to the above, according to the information reported by MEP Julia Reda, the exceptions for non-profits seems not to be set in stones either, as few countries are opposing it:

https://juliareda.eu/2018/05/censorship ... nish-line/

In essence, it is up the EU Parliament to pass or reject the most controversial articles now.
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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby CrocoDuck » Thu Jun 07, 2018 5:27 pm

So, I have been following the issue for a while. I think Article 13 and 11 of the normative are pretty bad and should be scrapped, essentially for what I said above. The exemption is not enough as for example GitLab is not a small business and not a non-profit. Also, what implements the norm wold be left to each state in the EU, so each EU state would have a different kind of norm, and the most restrictive one would dominate, as service providers cannot make 27 version of their service.

Now, the EU parliament is split in half, and one or two MEPs could be enough to have Article 13 rejected at the vote that will be on the 20 June 2018. If you too feel like this norm is broken, have a look at these links to "take action" and send your concern directly to the MEPs:

https://saveyourinternet.eu/
https://www.fixcopyright.eu/
https://savecodeshare.eu/
https://changecopyright.org/en-US/

You can also find the email address of the MEPs by browsing here, if you are up for more "personal" communication:

http://www.europarl.europa.eu/meps/en/s ... country=GB


Will it work? I don't know. Worth to try? I think so.
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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby CrocoDuck » Sat Jun 16, 2018 8:26 pm

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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby CrocoDuck » Fri Jun 22, 2018 8:01 am

So, the law proposal passed at the EU parliament. However, MEP Julia Reda is keeping on fighting:

https://juliareda.eu/2018/06/not-giving-up/

As a reminder, not all states agree on implementing exceptions for non-profits, so this has to be watched carefully in order to not see every single site available in Europe at risk of severe disruption.
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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby CrocoDuck » Sat Jun 30, 2018 9:39 am

So, I found a Q&A to copyright academics on the issue:
https://www.reddit.com/r/europe/comment ... el_bently/

Among most academics the consensus is that Article 11 and 13 are a significant threat to free speech rights. I find extremely concerning the truly vast generality of definitions used in the law proposal. According to what I can understand of it, Article 13 can really extend even to self hosted repositories, and become a new weapon (much like unlawful patent claims) to disrupt and attempt destroying open source projects. I will report this snippetpublished by myself in this diaspora thread.

Diaspora would survive [to Article 13], I think, since it is a non-profit organization. I am not really sure about Mastodon.

My latest point was more about this question: “Are we sure that self hosted websites are immune to Article 13?”

For example, this is my experimental Jekyll blog: https://crocoduckoducks.github.io/

It is static HTML. YAY!. It is empty, though, there are only a bunch of tests. It is hosted on GitHub, but I could self host it anywhere. This page has test comments on it:
https://crocoduckoducks.github.io/test/ ... ekyll.html

Since it has comments, then my blog “allows users to post content in such a way that the public can access it”. Hence, it qualifies as an “Online Content Sharing Service Provider”. I am not making any profit out of it, so I am safe. And at the same time I am sort of forbidden to make any profit out of it, if I had some plan for it. Do you want to force me to close the blog? Post a comment infringing a copyright, and bring me to court. Apparently I will be liable, even if you post the infringing comment. I am an individual, and not a registered non-profit organization. So I cannot afford the legal expenses to obviously prove that I am in the right.


Some more points from Julia Reda: https://juliareda.eu/2018/06/article-11-13-vote/

My opinion is that Article 11 and 13 are a very serious threat.
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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby tux99 » Sat Jun 30, 2018 9:14 pm

CrocoDuck wrote:So, the law proposal passed at the EU parliament.


It didn't pass parliament, it only passed in the rights committee. Discussion and voting in the main assembly still hasn't happened yet.

The main purpose of art 13 is to establish pre-emptive censorship technology that in the future can, and certainly will, be used for political censorship. It's already planned to use it to censor "hate speech" which as you can easily imagine can mean practically anything.
In other words the true purpose of Art 13 has nothing to do with copyrights (that's just a pretext) but rather with protecting the current political system by suppressing dissent. It's basically a comparable technology to what China already has.

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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby CrocoDuck » Sun Jul 01, 2018 7:30 pm

tux99 wrote:
It didn't pass parliament, it only passed in the rights committee. Discussion and voting in the main assembly still hasn't happened yet.


That's right, thank you for correcting that.

In the last days I tried to imagine what would happen if the law proposal was approved. My answers are below. I am no lawyer, so pick all of this with an appropriate dose of salt. I used most of the links I posted above to get an understanding of this.

What will happen to LinuxMusicians? (and similar forums)

This is a forum, so a website that "allow users to post content in such a way that the public can access it", to use Dr. Christina Angelopoulos words [1]. So, under the law proposal, it has to be considered an "Online Content Sharing Service Provider". So, what happens if a user posts some copyright infringing material in this forum?

a) Since LinuxMusicians is not a for-profit organization, LinuxMusicians falls under the exceptions of the law, so it has not to be considered liable.
b) Article 13 would also not consider LinuxMusicians liable if, even if it was a for-profit organization, it could demonstrate that all possible measures to prevent copyright infringing materials were in place (i.e. content filters). Given that this is a moderated forum, and the law does not mandate a particular kind of content filter, the moderators can be considered "content filters' (thing they indeed are). So Linux musicians would not be considered liable.
c) Whatever the case, LinuxMusicians will not be hold liable if the suspected infringing material is promptly removed.

For all forums similar to this one, operations should continue as always: Article 11 and Article 13 should not actually matter. However, I see an increased legal risk whenever points a) and b) above could be made hard to demonstrate, for example:

c) the website is not registered as a non-profit and it displays ads: might need to demonstrate in court that the website is acting in a "non-commercial purpose capacity".

This could be enough to make unlawful lawsuits as this one more frequent: viewtopic.php?f=59&t=18660

What will happen to forums owned by for-profit organizations?

This is the case for, for example, Ubuntu Forums (Canonical). If they are moderated, it counts as they have a manual content filter, so they should be safe, much like as above (with the added lawsuit risk).

What will happen to blogs?

If there aren't means for users to upload content (for example, comments) then they are not "Online Content Sharing Service Providers". Hence, they totally fall outside the scope of the law.

If they display user uploaded content, they will be exempted as soon as they are non-profit endeavours.

If they are operated on a for-profit basis, then they need to implement content filters, that can be very well manual moderation.

Again, liability of the provider is avoided by removing the suspected infringing material.

What will happen to self hosted software repositories?

Much like with forums, they are exempted if they belong to non-profits, or subjects acting in a "non-commercial purpose capacity".

If not, they need to implement content filters on the user uploaded content (commits) in order to not being accounted liable in case of breaching content. Manual auditing of commits, which is the normal praxis, qualifies as appropriate content filtering (as I understand).

Here the impact of an eventual unlawful lawsuit created only to be disruptive is quite high though, I believe, as in all the cases in which proper content filtering or non-profit operation is a bit "grey" the only way to avoid liability is removal of the suspect content, which might mean entire version rollbacks as far as software is concerned.

What will happen to software development platforms?

If they are non-profits, they are exempted. If not, they need to implement content filters. GitHub, GitLab, Bitbucket and the like cannot manually audit every single hosted project, so they will need an automatic filtering mechanism. I think these platforms are at the highest risk of having their business model very significantly impacted.

What if software development platforms are severely impacted?

Self hosted repositories (perhaps gitea is a good way), federated through a non-profit system akin to gitpub, should be a workaround.

What will happen to social networks?

Non-profits, such as Diaspora, should be exempted. All others will need to implement automatic content filtering, as that is the only one that is practical for them.

tux99 wrote:The main purpose of art 13 is to establish pre-emptive censorship technology that in the future can, and certainly will, be used for political censorship.


I understand that this is a topic that touches our sensibility, but I would appreciate if we could keep it on topic by sticking to the known facts about the proposal, their possible impact on Open Source and Communities, and avoid any speculation on what driving forces might be behind that (or reserve it for another thread).

[1] https://www.reddit.com/r/europe/comment ... el_bently/
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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby CrocoDuck » Sun Jul 01, 2018 8:00 pm

I forgot my conclusion on the above:

The added risk of potentially very disruptive lawsuits acted by large corporations and the lability-until-proven-otherwise of the platforms, in clear violation of the presumption of innocence, are for me enough, already, to reject Article 11 and Article 13. This without even considering the possible freedom of speech implications raised by UN functionaries[2].

If you agree, use the links I shared above to take action. Seems that calling the MEPs is the most effective way. Here a new link I found:
https://savethelink.org/

[2] https://assets.documentcloud.org/docume ... 1-2018.pdf
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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby raboof » Mon Jul 02, 2018 12:15 pm

I agree those 2 articles are a threat to individual rights holders, public initiatives and small players.

I've written to the Dutch representatives in the EP and received some promising replies. Not sure if it's realistic to expect anything at this point, but it's the least I could do.

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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby tux99 » Mon Jul 02, 2018 8:26 pm

CrocoDuck wrote:Given that this is a moderated forum, and the law does not mandate a particular kind of content filter, the moderators can be considered "content filters' (thing they indeed are). So Linux musicians would not be considered liable.

This is incorrect. The filtering has to happen before the content is published, so only if all posts are first checked by a moderator before being published then a forum would comply with art. 13.

The alternative is automatic filters which only very large companies like Google or Facebook are able to implement with a good detection rate as this is a very complex undertaking.

What will likely happen is that Google and/or Facebook will offer their filter as API for all web sites, and web sites will have to use this API as they have no other choice, which will mean that Google and/or Facebook will decide what can be uploaded and what not for all forums and other user generated content sites.
In other words this would be the centralised censorship in the hands of a couple of private companies that I alluded to in my previous post.

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Re: Open Source, Communities, and the Incoming New EU Copyrights Regulations

Postby CrocoDuck » Mon Jul 02, 2018 9:05 pm

tux99 wrote:This is incorrect. The filtering has to happen before the content is published, so only if all posts are first checked by a moderator before being published then a forum would comply with art. 13.


Uhm good point.
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