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Article 13, YouTube (BigTech) & #SaveYourInternet astroturfing

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Offline kat

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TL:DR, BigTech is concerned with their users only so far as doing so protects their own interests - they have absolutely no qualms blocking content access to entire regions of the globe, never mind a few individuals. In light of this the push back against Article 11 and 13 is not so much about "protecting users digital rights" or their access to content, as it is YouTube, Facebook, Twitter et al not wanting to be more accountable for the commercial exploitation of others content. Push back against Article 11 and Article 13 is about protecting company valuations, stock prices and profit margins, not doing right by creators/rights holders.

• • •

The truth about Article 11, Article 13 and why the tech giants are fighting hard with appeals to emotion, fear, scare tactics and sensationalism.

What is it about Article 13 that scares the tech giants to death?

Two things; 1) remuneration - they don't want to 'fairly' compensate content creators for the commercial exploitation of their content, and 2) liability - they don't want to be responsible for content and/or police it despite having advanced algorithms in place actively doing this for their own reasons.

This makes much of the push back against Article 11 & 13 little to do protecting users access to the Internet, or being able to watch Despacito on looped playback, and instead more about corporations not wanting their profits, stock and valuations to drop in response to having to pay out a few quid here and there and/or/both loosening their tight grip on content access[1], so they astroturf the conversation with faux grassroots campaigns likes #SaveYourInternet replete with scare stories and sensationalism as though they really, truly care... they don't.

Taking a look at the numbers the most popular content viewed on YouTube is music. As a category it rakes in billions of views, daily, much of which is monetised - adverts displayed alongside, before, in, after videos or somewhere, anywhere on the page, all equating to billions of adverts purchased to place (pay to play).

Some of this revenue does reach Partners[2]; YouTube has paid, to licensed music 'partners', approximately $2 billion in the last few years (c.$400 million per annum, over the last five years, money that goes to BigMusic, the bodies large enough to push their concerns to YouTube and those ostensibly responsible for ContentID (MPAA, RIAA et al).

For 'influencers', 'celebrities' and 'personalities' on the platform, earnings estimates range widely depending on the source from poverty-line levels (c.$12,000 in the USA) all the way up to the low millions annually. As a group however, total earnings do not appear to (at time of writing) exceed $100 million per fiscal year collectively.

Perhaps somewhat ironically, payouts are tax deductible so 'losses' can be offset against earnings to reduce liabilities to the IRS and other regional tax agencies, so the "would loose money" argument is only valid to a limited degree as the offset is more beneficial to the Corporation overall.

But that's just YouTube. For Google the number are much larger, whilst the former being estimated to have fiscal year earnings ranging between $8 billion and $12 billion for 2017, in contrast Google's revenues are estimated to be between $80 to $120 billion for 2018. Notwithstanding operational costs, pay outs to Partners and vloggers is tax deductible, the outlay reduces tax liabilities.

Throw into the mix capital worth of BigTech and the context changes, estimates (at time of writing) have YouTube at $150 billion, Google (Alphabet) $1 trillion. As for the other members of the BigTech collective; Microsoft $800 billion, Facebook $400 billion, Twitter $25 billion, Apple $850 billion, Twitch $20 billion, Yahoo $20 billion, and whilst the means through which that value is reached differs, many employ user generated content and its consumption as a primary, if not significant component of their earning strategies.

• • •

With all that said, the problem with all this is the complications presented by the legal relationship creators, users and platform holder have with one another. Creators and platform holders in particular have an agreement that allows for the commercial exploitation of the content uploaded through the "non-exclusive, royalty free" license that's granted at upload or necessary to be signed prior to be given access to the tools to publish content. Article 11 and Article 13 would likely change this, although how is not exactly clear, at the very least it might mean changes to user agreements and contracts, creators potentially having greater leverage over platforms carte-blanche ability to monetise their material without fairly compensating authors/rights holders - the removal of 'qualifications' for receipt of compensation a la YouTube.

It should noted, if clarification is needed, the above is not specifically an argument for Article 11 or Article 13, rather a discussion of the deeper issues the legislation is responding to and rationale behind it; BigTech is not shy of blocking or restricting access to content for any reason, this is how Content ID works with partners providing criteria for filtering, blocking and remuneration of Partners on YouTube, or the reasons 'fake news' can be blocked on Facebook. Neither Article 11 or Article 13 require BigTech do something they are not already doing if perhaps only for [sarc]ever-so-slightly[/sarc] self-motivated reasons.

Aside from having to cough up cash and compensate creators, perhaps YouTube, Google, Twitch, Facebook, Twitter, Instagram et al are balking at the Articles because they might require they be more transparent and accountable for their actions, it creates a digital paper trail that, under EU law (GDPR), can be accessed by users, and required to be deleted if so requested, when Users data, who they are, what they do, access and watch is the product, anything that affects that will likely be detrimental to BigTechs control over the Internet and rebuffed even if it means doing what they already do more passive-aggressively.

Further Reading
- Article 13 of the EU Copyright Directive
- Article 11 of the EU Copyright Directive (link tax)
- Article 13 draft proposed amendments (Sept 2018)
- EU Directive on Copyright - Article 11 (link tax) & Article 13 (content filter)
- Voluntary Copyright Alert Program (Vcap)
- Its a Terms of Service violation, not Copyright dispute

[1] So much so that to this end, content control, the "compromise" YouTube suggests essentially extends Content ID, it grants YouTube greater ability, that might then have force of law behind it, to police content and access how they see fit.

Is there a better way forward with Article 13?
Yes! We're asking lawmakers to find a better balance we all need to protect against copyright violations and still enable European users, creators and artists to share their voices online. In order to do that, we need a system where both platforms and rightsholders collaborate.

What this means in reality is three things:
- Rightsholders should work with platforms to identify the content they own, so the platforms know what is protected under copyright and can give rightsholders control to block if they choose.
- Platforms should only be held liable for content identified to them using tools like Content ID or through notice and takedown.
- Platforms and rightsholders should negotiate in good faith where licenses and rights can be easily identified
Or by way of another very recent example, Article 19.17 of the USCMA Trade Agreement (signed into law late Nov 2018) that grants platform holder liability exemptions, in law, from users actions - "No Party (Government or Agency thereof) shall impose liability on a supplier or user of an interactive computer service on account of:... voluntary action... technical action". This can be leveraged as legal grant for banning users and blocking content access as providers see fit (although the context for the USMCA is cross-border trade - United States, Mexico, Canada - the legislative authority the clause grants service providers with respect to immunity is very real).

[2] All figures are speculative estimates as very little actual data is available for scrutiny.

Offline kat

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Want some images to plaster all over social media and the rest of the Interwebs that encourage people to find out the truth about #SaveYourInternet and Article 13? Try these...

Original from YouTube.