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To Whom It May Concern:

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I address today on account of the Electronic Frontier Foundation, to accession burning issues accompanying to Accessories 11 and 13 of the accessible Absorb in the Agenda Distinct Bazaar Directive, currently beneath altercation in the Trilogues.

The Electronic Frontier Foundation is the arch nonprofit alignment arresting civilian liberties in the agenda world. Founded in 1990, EFF champions user privacy, chargeless expression, and addition through appulse litigation, action analysis, grassroots activism, and technology development. We assignment to ensure that rights and freedoms are added and adequate as our use of technology grows. We are accurate by over 37,000 altruistic associates about the world, including about three thousand aural the European Union.

We accept that Accessories 11 and 13 are absurd and should not be EU law, but alike stipulating that systems like the ones advised by Accessories 11 and 13 are desirable, the proposed argument of the accessories in both the Parliament and Council texts accommodate cogent deficiencies that will capsize their declared purpose while endangering the axiological animal rights of Europeans to chargeless expression, due process, and privacy.

It is our achievement that the abundant archive of these flaws, below, will account you to amend Accessories 11 and 13’s admittance in the Directive altogether, but alike in the adverse accident that Accessories 11 and 13 arise in the final accent that is presented to the Plenary, we achievement that you will booty accomplish to abate these risks, which will essentially affect the barter of the Directive in associate states, and its animation to challenges in the European courts .

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Article 13: Apocryphal absorb claims breed in the absence of bright evidentiary standards or after-effects for inaccurate claims.

Based on EFF’s decades-long acquaintance with notice-and-takedown regimes in the United States, and clandestine absorb filters such as YouTube’s ContentID, we apperceive that the low evidentiary standards appropriate for absorb complaints, accompanying with the abridgement of after-effects for apocryphal absorb claims, are a anatomy of moral hazard that after-effects in adulterine acts of censorship from both alive and careless apocryphal absorb claims.

For example, rightsholders with admission to YouTube’s ContentID arrangement systematically overclaim copyrights that they do not own. For instance, the workflow of account broadcasters will generally accommodate the automated upload of anniversary night’s advertisement to absorb filters after any animal oversight, admitting the actuality that newscasts generally accommodate audiovisual abstracts whose copyrights do not accord to the anchorperson – accessible area footage, actual acclimated beneath a limitation or barring to copyright, or actual that is accountant from third parties. This carelessness has anticipated consequences: others — including bona fide rightsholders — who are advantaged to upload the abstracts claimed by the newscasters are blocked by YouTube and accept a absorb bang recorded adjoin them by the system, and can face abatement of all of their materials. To aces one example, NASA’s own Mars lander footage was advertisement by newscasters who abominably claimed absorb on the video by cavity of accepting included NASA’s livestream in their newscasts which were again added to the ContentID database of copyrighted works. Aback NASA itself after approved to upload its footage, YouTube blocked the upload and recorded a bang adjoin NASA.

In added instances, rightsholders carelessness the limitations and exceptions to absorb aback gluttonous to aish content. For example, Universal Music Group insisted on removing a video uploaded by one of our clients, Stephanie Lenz, which featured accidental audio of a Prince song in the background. Alike during the YouTube appeals process, UMG banned to accede that Ms. Lenz’s accidental admittance of the music was fair use – admitting this assay was eventually accepted by a US federal judge. Lenz’s case took added than ten years to adjudicate, abundantly due to Universal’s intransigence, and elements of the case still amble in the courts.

Finally, the low evidentiary standards for appraisal and the abridgement of penalties for corruption accept accustomed acceleration to absolutely anticipated abuses. Apocryphal absorb claims accept been acclimated to aish bigmouth memos account flaws in acclamation security, affirmation of badge brutality, and disputes over accurate publication.

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Article 13 contemplates that platforms will actualize systems to acquiesce for bags of absorb claims at once, by all comers, after amends for errors or apocryphal claims. This is a compound for atrocity and charge be addressed.

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Article 13 Recommendations

To absolute abuse, Article 13 must, at a minimum, crave able affidavit of character from those who seek to add works to an online account provider’s database of claimed copyrighted works and accomplish advancing admission to Article 13’s accountability administration accidental on advancement a apple-pie almanac apropos apocryphal absorb claims.

Rightsholders who ambition to accomplish absorb claims to online account providers should accept to accommodated a aerial identification bar that establishes who they are and area they or their abettor for account can be reached. This advice should be accessible to bodies whose works are removed so that they can seek acknowledged redress if they accept they accept been wronged.

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In the accident that rightsholders again accomplish apocryphal absorb claims, online account providers should be acceptable to bang them off of their account of trusted claimants, such that these rightsholders charge abatement aback to gluttonous cloister orders – with their college evidentiary accepted – to aftereffect abatement of materials.

This would crave that online account providers be immunised from Article 13’s accountability administration for claims from addled off claimants. A rightsholder who abuses the arrangement should not apprehend to be able to adjure it after to accept their rights policed. This striking-off should bore the blind of third parties deputised to aftereffect takedowns on account of rightsholders (“rights administration companies”), with both the third affair and the rightsholder on whose account they act actuality afar from Article 13’s privileges in the accident that they are begin to again corruption the system. Otherwise, bad actors (“copyright trolls”) could hop from one rights administration aggregation to another, application them as bouncer for again acts of bad-faith censorship.

Online account providers should be able to pre-emptively bang off a rightsholder who has been begin to be calumniating of Article 13 by addition provider.

Statistics about Article 13 takedowns should be a amount of accessible record: who claimed which copyrights, who was begin to accept falsely claimed copyright, and how abounding times anniversary absorb affirmation was acclimated to aish a work.

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Article 11: Links are not authentic with acceptable granularity, and should accommodate harmonised limitations and exceptions.

The absolute Article 11 accent does not ascertain aback citation amounts to a use that charge be licensed, admitting proponents accept argued that commendation added than a distinct chat requires a license.

The final argument charge dness that ambiguity by abstraction out a bright safe-harbor for users, and ensure that there’s a constant set of Europe-wide exceptions and limitations to account media’s new pseudo-copyright that ensure they don’t bamboozle with their power.

Additionally, the argument should aegis adjoin ascendant players (Google, Facebook, the account giants) creating licensing agreements that exclude anybody else.

News sites should be acceptable to opt out of acute a authorization for entering links (so that added casework could confidently articulation to them after abhorrence of actuality sued), but these opt-outs charge be all-or-nothing, applying to all services, so that the law doesn’t add to Google or Facebook’s bazaar ability by acceptance them to accommodate an absolute absolution from the articulation tax, while abate competitors are saddled with authorization fees.

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As allotment of the accepted negotiations, the argument charge be antiseptic to authorize a bright analogue of “noncommercial, claimed linking,” allegorical whether authoritative links in a claimed accommodation from a for-profit blogging or amusing media belvedere requires a license, and establishing that (for example) a claimed blog with ads or associate links to compensate hosting costs is “noncommercial.”

In closing, we would like to reiterate that the flaws abundant aloft are alone those elements of Accessories 11 and 13 that are breathless or not fit for purpose. At root, however, Accessories 11 and 13 are bad account that accept no abode in the Directive. Instead of ability some piecemeal fixes to the best audacious problems in these Articles, the Trilogue booty a simpler approach, and cut them from the Directive altogether.

Thank you,

Cory DoctorowSpecial Consultant to the Electronic Frontier Foundation

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