Article 13 Supporters Changes Tactics, Say’s It’s All About YouTube

Major media conglomerates are changing tactics when it comes to pushing for the censorship machine. They now say it’s all about YouTube payouts.

The Article 11 (Link Tax) and Article 13 (censorship machines) debates are continue to rage on in Europe. With supporters of censorship gradually losing public support for the directive, they have now changed gears and said it’s all about making YouTube pay artists more.

Previously, what organizations that represent multi-national corporations have been pushing was that it’s supposed to fix this nebulous “value gap”. One of propaganda pieces launched by the IFPI back in June suggests that the directive is supposed to be all about ensuring artists get paid.

Of course, that argument was always a very weak one because anyone who analyzes the directive can immediately see that it’s all about filtering technology and making smaller players in the world of news pay more for linking to content. So, immediately, there is a major disconnect between what supporters are pushing and what is actually in the legislation they are so actively lobbying for.

In response, free speech supporters have been able to promote their side by saying that this is going to be a direct assault on the Internet and your ability to participate in the society of today. The public wound up rushing towards the free speech proponents side. A petition circulating managed to get nearly 1 million signatures. Websites saw the directive for what it was and temporarily shut down to protest the legislation.

As a result, supporters of the censorship machines wound up counting their victories in how well their governmental lobbying campaigns have gone. This, of course, put a number of European lawmakers in the awkward position of voting for laws that are against the public interest and in favour of major corporate interests.

For supporters of the censorship machines, the PR front went from bad to worse. A former Universal music record executive came out against Article 13. He pointed out that the directive ignores the progress made on the Internet in the last several years and would, subsequently, hold the music industry back. This, of course, put the idea out there that even those high up on the business side of the music industry understand that this directive is not the way forward.

In early November, free speech supporters got a powerful ally when YouTube came out against the copyright directive. The company basically said that the laws are bad news for content creators and could cost Europe hundreds of thousands of jobs. This is all because the directive would negatively impact platforms that give creators a chance to find their audiences.

So, it comes as no surprise that with the “Value Gap” propaganda campaign completely falling flat, censorship supporters found themselves scrambling to try and recover on the PR front. So, they opted to launch a direct assault on YouTube seemingly because it is one of the most public supporters of free speech in this fight.

In an article on BillBoard, one censorship supporter tried to re-frame the debate as a fight between rightsholders and YouTube. From the opinion piece:

Cohen’s arguments, meantime, are aimed at the music business, and most of them are smart and rational, but completely beside the point. For example, he points out that YouTube has paid the music industry €5 billion so far, and €1.5 billion over the last year, from advertising alone, although the IFPI disputes these numbers. But subscription streaming services paid out $5.6 billion last year alone, and the free availability of so much music on YouTube doesn’t exactly provide an incentive to join one. (While, as Cohen says, this legislation could decrease rights holder revenue from YouTube, the music industry is betting that it could also increase revenue overall.) Cohen also says that YouTube’s subscription service pays the same rates as Spotify’s, which makes sense, since both companies negotiate with rights holders on an equal footing. But how do the ad-supported tiers compare? And since Spotify seems to do a far better job of converting free tier users into subscribers, shouldn’t YouTube’s actually pay more?

Cohen then argues that creators don’t know how much the service actually pays, because of “a lack of transparency between the money YouTube pays to labels and the money artists see in their pocket,” And he suggests that labels allow the service to disclose its payment structure to artists. This is a great idea, but why stop there? Why not tell creators how many subscribers YouTube’s paid service has, what percentage of YouTube views music accounts for, or even how much value YouTube derives from tracking its users?

Now, if you’ll notice one thing about the article as a whole, let alone this excerpt, there is no mention of problematic filters. No mention of forcing people to pay for linking. Instead, the article would have you believe that it’s all about YouTube needing to pay more for content being posted on their site.

For free speech supporters, this shift in talking points is not lost on them. Cory Doctorow responded to these talking points with the following:

There aren’t that many places where Big Content can find the audiences that keep them profitable: Facebook, Google, Twitter, Apple, Amazon, a few others. The concentration in Big Tech means that even with additional copyright powers, if Big Tech doesn’t want to buy at the price that Big Content is selling for, Big Content will need to lower their prices. Big Tech doesn’t hold all the cards, but it sure holds most of them.

Article 13 won’t help. Even if Big Tech has to pay a little extra for licensing at first, the long-term effect of Article 13 will be to reduce competition in tech, leading to even more concentration and even more market power. Even if a fast-growing little online company manages to grow to challenge YouTube or Facebook, the instant it crosses into that competitive territory, it will be classed as a “large platform” under Article 13, meaning that it will then acquire a legal obligation to spend $100-$300 million on the filters Article 13 will require of “large platforms”, or face blanket liability for every arguably infringing file that their users upload onto their service. Neither YouTube, nor Facebook, nor Twitter could have grown to their current size if going from “small” to “large” had meant spending hundreds of millions extra to comply with European copyright law.

Artists of all description commonly say that the corporations they sell their works through do not pay them their fair share. The thing is, there are a lot more artists who want to reach audiences than there are companies willing to pay for those artists’ work, and only a minority of people who are good at making art are also good at marketing their work.

That means that just as Big Content finds itself unable to exert leverage over Big Tech, little artists can’t exert leverage over the corporations that pay to use their works. It would be very naive to assume that putting more money in a giant media company’s pockets would result in the extra money going to the artists whose works Big Content is selling to Big Tech. It’s much more likely that the new funds will be funneled straight to Big Content’s shareholders; indeed, the shareholders would insist upon it.

In a subsequent piece, Doctorow responded to politicians who seem to refuse to consider Article 13 as a piece of legislation that is about filtering by saying that it is a filtering law:

The proponents of Article 13 have a problem, though: filters don’t work, they cost a lot, they underblock, they overblock, they are ripe for abuse (basically, all the objections the Commission’s experts raised the first time around). So to keep Article 13 alive, they’ve spun, distorted and obfuscated its intention, and now they can be found in the halls of power, proclaiming to the politicians who’ll get the final vote that “Article 13 does not mean copyright filters.”

But it does.

Here’s a list of Frequently Obfuscated Questions and our answers. We think that after you’ve read them, you’ll agree: Article 13 is about filters, can only be about filters, and will result in filters.

In the end, there is definitely an effort by pro-censorship organizations to try and pretend that Article 13 is not about filters. Instead, they’ve made a major push to try and proclaim it to be about YouTube paying artists more. Unfortunately for them, changing the channel and trying to win the publicity war by centring their arguments on big bad YouTube is likely going to fall flat. This is because free speech proponents simply have to keep pointing out that the censorship machines is still a censorship law. Pulling excerpts from it isn’t that hard these days either.

One angle of looking at the debate is the fact that by trying to go after YouTube, pro-censorship groups are admitting that filtering is a fight they cannot win on the PR side. By abandoning the core pillars of the legislation by shoehorning what amounts to a straw man argument, it makes it easier for free speech proponents to keep hammering the legislation for what it stands for. The additional fact that they are largely distancing themselves from their original value gap is also a potential admission that that is a campaign was always dead on arrival no matter how often they keep dismissing criticisms as “myths”.

At this point, now it’s possible for people to have this image of major corporate interests scrambling to find any talking point that can stick just for the sake of getting this law past the finish line. If anything, the politicians they spent so much time lobbying also need reasons to support the legislation. If all they have for supporting the legislation is that because they are getting paid off to do so, then it’s going to be problematic for them come election time.

While this can point to an uneasy relationship between politicians and corporate lobbyists, it doesn’t actually make predicting the end result much easier. All we can say is that the shift in talking points does show at the very least that there are cracks forming on the pro-censorship side of the debate. With public access increasing in subsequent debates, it does open the chance that this legislation can actually be stopped after all.

Drew Wilson on Twitter: @icecube85 and Google+.

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