Last December, the Federal Communications Commission overturned Obama-era rules protecting so-called net neutrality. And it did so despite receiving millions of comments protesting the new policy.
Those who objected to ending net neutrality feared that without it, internet service providers (ISPs) could censor the websites you visit. That they could offer faster service for companies willing to pay higher fees.
I didn’t take these objections very seriously, because even when net neutrality was in place, federal laws already required some internet censorship. For example, the Digital Millennium Copyright Act (DMCA) criminalizes the creation and distribution of tools that could be used to circumvent copyright protection. What’s more, ISPs have always charged consumers more for faster service.
My beef isn’t with net neutrality, but with the DMCA, because it effectively bans all sorts of innovation. For instance, I own a Hewlett-Packard OfficeJet printer. I can only buy the expensive cartridges for this printer from HP. There’s a security chip in the cartridge that prevents the printer from using cartridges manufactured by other companies. If I’m foolish enough to buy them, they won’t work in my printer. Indeed, to use even the cartridges that came with the printer, I had to sign up for HP’s cartridge delivery service.
Under the DMCA, any company that develops a product that circumvents HP’s measures to make me use only HP cartridges is breaking the law.
The DMCA also criminalizes security research. For instance, HP used the DMCA to sue researchers who discovered serious security vulnerabilities in one of its operating systems.
Some exemptions to this policy exist, thanks to rules issued in 2016 by the Library of Congress, but there’s plenty of room for improvement.
With this in mind, it’s astonishing to consider that the European Union is poised to adopt a rule that is effectively the DMCA on steroids. The new rule is designed to provide greater protection to copyright owners. But if the rules come into effect as they’re now written, they will seriously frustrate innovation and competition, just like the DMCA has in the US.
The "Directive on Copyright in the Digital Single Market" has two especially problematic sections.
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Article 11 would require any publisher (or anyone else) using even the smallest snippets of copyrighted content to obtain a license before doing so.
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Article 13 would require any website that permits users to upload materials to it to ensure that the content isn’t copyrighted.
It’s hard to know how things will unfold if the directive comes into effect, but I predict that it will mainly benefit the largest and most deep-pocketed companies in the EU.
For instance, if you’re a big EU publisher, chances are you’ll pay to license your content. If you’re not a major publisher, you might be hard-pressed to do so. And Google and other search engines will stop listing media outlets that have no licensing.
Something similar happened in Spain in 2014 when the country enacted what was derisively called a “Google tax.” It made Google and other search engines or data aggregators pay to link to news stories. The result was entirely predictable. Google abandoned the Spanish market entirely and stopped showing Spanish media outlets in news searches. A study commissioned by Spanish publishers concluded the law would cost publishers nearly $11 million, with most of the impact concentrated on smaller publishers.
Then there’s the matter of preventing copyrighted materials to be uploaded to websites. Proponents of the rule claim that websites can install automated copyright scanning software. But there’s just one problem. The programs that are on the market tend to also reject non-infringing content.
For instance, music that contains sampling from other songs is often rejected by these programs. Gavin Dunne, the man behind the internet music project Miracle of Sound, had his own original works taken down by a copyright filter. The filter didn’t bother to check if he was uploading his own work.
If you live in the US, the proposed directive won’t have an immediate effect on you. Although it could throttle search results from EU sources and restrict your ability to upload content to websites like YouTube or Google that are popular in the EU.
The bigger issue, though, is that if the directive comes into effect, the internet will be transformed from an open platform for sharing and innovation into a mechanism for industrial-scale surveillance. That’s a development only Big Business – and Big Brother – will benefit from.
