The Interface

By Casey Newton

Europe splits the internet into three



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March 26 · Issue #304 · View online
The Interface
It’s strange to think about now, but until the 1920s, you didn’t generally need a passport to travel. A smart CEO I know recently mentioned this to me in the context of what’s happening to the internet. The idea of making citizens carry documents to promote border security, he said, dates only to the aftermath of World War I.
The online world is much younger than the offline one, and so it shouldn’t surprise us that it is generally a much freer place to travel. There are places you can’t easily get to, such as the so-called dark web; and places you can’t easily travel the internet from, such as North Korea. Generally, though, anyone with internet access has historically been able to access the vast majority of it.
Reading today’s news about the European Union’s passage of the Copyright Directive, though, I wondered whether we would all soon need passports as we travel around the web. The internet had previously been divided into two: the open web, which most of the world could access; and the authoritarian web of countries like China, which is parceled out stingily and heavily monitored.
As of today, though, the web no longer feels truly worldwide. Instead we now have the American internet, the authoritarian internet, and the European internet. How does the EU Copyright Directive change our understanding of the web? James Vincent describes its changes, which still must be implemented by individual countries, in The Verge:
Despite setbacks, the most controversial clauses of the Copyright Directive — Article 11 or the ‘link tax’ and Article 13 — have remained pretty much intact.
Article 11 lets publishers charge platforms like Google News when they display snippets of news stories, while Article 13 (renamed Article 17 in the most recent draft of the legislation) gives sites like YouTube new duties to stop users from uploading copyrighted content.
In both cases, critics say these well-intentioned laws will lead to trouble. Article 13, they say, will lead to the widespread introduction of “upload filter,” that will scan all user content uploaded to sites to remove copyrighted material. The law does not explicitly call for such filters, but critics say it will be an inevitability as sites seek to avoid penalties.
Assuming this law is implemented, Google may choose to shut down Google News in Europe. (It pulled out of Spain in 2014 after that country implemented a similar rule around displaying snippets of text.) Google has said it could follow suit across Europe, and other companies could follow. If Google has to pay to effectively quote news stories, what other websites might face similar restrictions? It’s easy to imagine a chilling effect across the entire internet.
The “upload filter” Vincent mentions would have a similar — and dire — chilling effect on sites like YouTube. The company famously played fast and loose with copyright during its early days, and Europe apparently has a long memory. YouTube has lobbied vigorously against the law, and galvanized impressive popular support in Europe, as Karl Bode noted in Motherboard:
More than 200,000 Europeans took to the streets to protest the proposal last weekend, and an online petition calling for the removal of the most controversial parts of the proposal has received more than 5 million signatures.
But a majority of European lawmakers signed the bill into law anyway, and it’s now quite unclear how YouTube and other sites that host audio and video will operate in a world where it has to use copyright law aggressively against its user base.
At the moment, the defining feature of the European internet might be uncertainty. The Electronic Frontier Foundation, which lobbied against the bill, is predicting disaster. EFF’s Danny O'Brien writes:
We can expect media and rightsholders to lobby for the most draconian possible national laws, then promptly march to the courts to extract fines whenever anyone online wanders over its fuzzy lines. The Directive is written so that any owner of copyrighted material can demand satisfaction from an Internet service, and we’ve already seen that the rightsholders are by no means united on what Big Tech should be doing. Whatever Internet companies and organizations do to comply with twenty-seven or more national laws – from dropping links to European news sites entirely, to upping their already over-sensitive filtering systems, or seeking to strike deals with key media conglomerates – will be challenged by one rightsholder faction or another.
But there’s also opportunities for the courts to rein in the Directive – or even throw out its worst articles entirely. One key paradox at the heart of the Directive will have to be resolved very soon. Article 13 is meant to be compatible with the older E-Commerce Directive, which explicitly forbids any requirement to proactively monitor for IP enforcement (a provision that was upheld and strengthened by the ECJ in 2011). Any law mandating filters could be challenged to settle this inconsistency.
Perhaps the big platforms will feel so motivated to preserve their European user bases that they will indeed negotiate the deals necessary to keep their existing services operating basically as is. But it’s just as easy to imagine them scaling back their services, as Google has already done, and further divide the internet into zones. If it goes far enough, the entire internet may begin to feel like Netflix, whose library of content varies dramatically depending on which country you log on from.
I tend to favor more regulation of the internet than we have gotten so far in the United States. But the Copyright Directive helps illustrate at least one reason why we Americans have defaulted to doing nothing: it’s very hard to use regulation to achieve specific outcomes, and the devil will always be in the details. The conventional wisdom in Silicon Valley is to oppose regulation out of the fear that it will simply strengthen incumbents — and looking at the expensive and technically difficult new requirements that the directive places on would-be challengers, this is one case where the conventional wisdom appears to be exactly right.
For those of us looking for a check on tech giants’ power, Europe has generally been an ally. Its understanding of antitrust as an issue of competition rather than pricinghas galvanized an important discussion here in the United States. More recently, the General Data Protection Regulation, for all of its own flaws and incumbent-strengthening properties, has inspired valuable copycat legislation in California and other states. Among other things, Europe has helped to enshrine the basic principle that people ought to be able to see what data is being collected about them.
But this latest effort is hamfisted in the extreme, and may have the effect of splintering the internet beyond what seemed possible even a few years ago. In the wake of GDPR’s passage, Europeans couldn’t visit the websites of some US publishers for months as new privacy frameworks were put into place. That sort of thing may be about to become a lot more common. The time has now come to speak of the internets, plural. And to get around, you might just need a passport.

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Apple TV+ makes Facebook Watch look like a joke
And finally ...
This is just a tweet that made me laugh:
Dr. Megan Simon
Someone on Instagram asked to buy nudes from me, and I was so offended. I’ll say it loud, and I’ll say it proud: I only send nudes for FREE to men who have TRICKED ME into thinking we have an emotional CONNECTION
Talk to me
Send me tips, comments, questions, and your amendments for the Copyright Directive:
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