lunes, 19 noviembre 2018

(English) Of hypocrisy and democracy

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As a previous editorial explained, the EU’s proposed directive – supposedly aimed at making copyright “fit for the digital age” – has now entered the trilogue negotiations. Hitherto, in an abiding affront to democracy, these discussions have been held behind closed doors, and the details kept secret. However, an important recent decision by the General Court of the European Union means that the European Parliament can no longer deny the public access to trilogue documents. This will allow the Pirate Party MEP Julia Reda to provide some long-overdue transparency for this process.

MEP Reda has just published documents relating to the second round of trilogue negotiations on her Web site. They provide information about an important shift that has taken place in the position of Italy on both upload filters (Article 13) and the ancillary copyright for news publications (Article 11). As she explains, this means there is a small chance that both might be rejected, or at least improved, during the trilogue negotiations. MEP Reda also provides other updates on the text that might emerge from the trilogues for a final vote in the European Parliament. There’s both good and bad news, and her post is well-worth reading.

But here I want to step back from the horse-trading that is taking place among the EU institutions, and look at the bigger picture. What has happened with the EU Copyright Directive touches on some general issues that go far beyond the world of copyright.

The failure to convince MEPs to remove Articles 13 and 11 from the draft text because of the damage they will cause to the Internet as we know it was, to put it mildly, surprising. After all, this site, along with many others, explained in great detail why Article 13 inevitably meant upload filters, which are bound to throw up false positives, and will lead to lawful material like works in the public domain and memes disappearing, with little hope that ordinary Internet users will be able to overturn those blocks effectively.

Similarly, CopyBuzz and others discussed how Article 11’s ideas had already failed twice elsewhere, not least in terms of generating meaningful extra revenue for publishers. The question then becomes: how were those keen to tilt the copyright playing-field even more in favour of corporations, to the detriment of 500 million EU citizens, able to convince MEPs that this was a good idea?

One thing fans of upload filters and ancillary copyright did not do was to address the detailed and substantive arguments that Articles 13 and 11 were flawed and harmful. Of course, that’s hardly surprising, since the people furnishing those discussions included renowned figures from the world of technology, like Tim Berners-Lee, as well as leading legal, economic and social scientists. Their expertise was inarguable – and so copyright companies and their lobbyists didn’t even try to rebut their reasoning.

Instead, the copyright maximalists fell back on the only option available to them: trying to sow doubt in the minds of MEPs about the concerns raised, using crude disparagement. There was breathless talk of “astroturf” groups “hacking” the vote on the EU copyright directive. One headline even claimed “EU MEPs Hacked“, which sounds like CRISPR’s genomic cut and paste technology had been used to tamper with politicians’ DNA.

In fact, the headline used the term “hacked” in a way that was doubly incorrect. The original meaning of “hacking”, as defined by the man who embodied the term more than anyone else, was “exploring the limits of what is possible, in a spirit of playful cleverness”. It is completely positive. Sadly, that meaning has been obscured by a more recent, and negative, misapplication of the term to mean “breaking into a computer system”. That’s certainly not the case here, so its use is technically misguided.

The same lack of understanding about how the Internet works is evident elsewhere. For example, an article in the influential German newspaper FAZ sought to use hashtags to cast doubt on whether thousands of tweets about the impact of the Copyright Directive on the Internet in the EU were genuine expressions of concern. The article quoted research which showed that some 88,000 tweets came from Washington in the US, compared with just 71,000 for the whole of the EU. It went on to suggest (my rough translation): “Either there are a particularly large number of EU citizens sitting in Washington who want to “save” the Internet, or we are dealing with the location of a botfarm.”

The problem with this argument is that the author had confused one hashtag – #savetheinternet – with another – #saveyourinternet. Where the latter was indeed about the EU Copyright Directive, the former was about protecting net neutrality – in the US. Thus the apparently damning predominance of tweets from the US was precisely what you would expect for a US campaign about US legislation. It’s an easy mistake for someone not well-versed in the digital world to make. More cynical souls might suspect this mix-up of two similar-sounding, but easily-distinguishable hashtags, referring to completely different campaigns, on different continents, might have been born of something other than simple ignorance.

There are plenty more examples where supporters of upload filters and ancillary copyright misuse technical terms – for whatever reason. For example, in an interview about the large number of emails sent by concerned citizens, the MEP Jean-Marie Cavada said: “as sometimes we receive dozens of emails per minute, we can conceive that it is actually robots that send all these emails”. This conjures up the wonderful image of some modern-day Robbie the Robot typing away furiously at a keyboard before pressing “send”. Of course, Cavada actually meant spambots, as the introduction to the interview made clear. But the idea that these emails were spam is just as risible as Cavada’s quaint vision of Robbie the Robot.

I still remember the first time I received spam. Nothing special about that, you might say. After all, everybody gets spam these days. But I remember my first spam because it was the first commercial spam message ever sent – the so-called “Green Card” spam incident, which took place on 12 April 1994. The reason it was so shocking was simple: it was a commercial message sent out to many people regardless of whether it was relevant to the recipient – something that had been taboo in the online world until then.

That’s why the deluge of emails from people to MEPs about the Copyright Directive were not spam. The emails, however rudimentary they may have been, and irrespective of whether their wording was similar, were of the utmost relevance to the MEPs, because the politicians were at that moment working out their positions on the proposed legislation, and how they would vote. The emails could hardly have been more pertinent and timely.

Moreover, they were not sent by spambots, which are automated systems that fire off huge numbers of emails without the need for repeated human intervention. Every email received by MEPs in this flood of messages required an action from an individual. That many emails came via a few key sites doesn’t change that: it simply reflects the fact that it has previously been hard for members of the public to contact MEPs – most people have no idea how to do this.

These sites are providing a valuable public service that enables and encourages people to participate in the political process. Engagement is something that the EU has always claimed is vitally important for the European project, even as it has thrown up barriers to broader participation. Sites making that possible, and on an unprecedented scale, should be lauded, not lambasted.

The fury in some quarters that hundreds of thousands of ordinary citizens should dare to contact politicians in this way is extremely telling. It is an anger born of threatened privilege – the fact that, in the past, only big companies had access. Only they could bend the ear of decision-makers, and thus help mould legislation to their advantage. But now – shock horror – the little people, the sans-culottes, have ways to contact politicians directly and have dared to express their own views about the shape of new laws.

There have been complaints that some emails sent to MEPs came from outside the EU. Of course they did: the Internet is a global ecosystem. The EU Copyright Directive will have massive implications for the entire online world, just as the EU’s GDPR has already profoundly affected digital companies everywhere. Ordinary Internet users in countries around the globe are deeply worried about the knock-on effects that Article 13 and Article 11 will have.

To pretend that their geographical location somehow invalidates those concerns is not just ridiculous, it is hypocritical. For decades, US companies – notably those in the copyright realm – have spent huge sums lobbying for and against aspects of new EU laws, because they know the ramifications will touch them outside Europe. This is accepted as perfectly normal, even though much of it happens behind closed doors, with little or no transparency. And yet it seems that ordinary Internet users, the little people, are not allowed to contact MEPs once in a while to express openly their own fears about the impact of EU legislation.

The success of groups in favour of upload filters and harsher copyright regimes in persuading the MEPs to ignore the pleas of huge numbers of citizens, both in the EU and beyond, is not just a matter of bare-faced hypocrisy. Members of the public have been vilified for using sites to help them send simple but heartfelt messages to politicians. We are told that this kind of communication is “spam”, or even a Distributed Denial-of-Service (DDoS). That’s not just technically wrong – again – but a self-evidently absurd idea, since the last thing citizens want is to stop MEPs from reading and responding to their messages.

The central dogma being hammered home here is that emails from citizens to MEPs are illegitimate, and that only traditional forms of lobbying, as practised in Brussels for decades by deep-pocketed corporations, really count. As such, the constant, petulant mud-slinging is an attack on the right of citizens to take advantage of the Internet to voice their views on key issues and laws, and to participate in the political process as never before. Ultimately, then, it is a pathetic and desperate attack, by a backward-looking industry hankering for the past, on 21st-century democracy itself.

Featured image by European Cyclists’ Federation.

Writer (Rebel Code), journalist, blogger. on openness, the commons, copyright, patents and digital rights. [All content from this author is made available under a CC BY 4.0 license]