IFPI, Other Copyright Corporations, Upset Over Safe Harbour Provisions in Europe

The IFPI penned an open letter expressing their opposition towards safe harbour provisions in Europe’s Digital Services Act.

The International Federation of the Phonographic Industry (IFPI), which is basically the international arm of the Recording Industry Association of America (RIAA), has penned an open letter expressing opposition to the inclusion of safe harbour provisions in the Digital Services Act (DSA).

Safe harbour provisions, as a general rule, are a legal necessity for the functioning of the Internet today. Essentially, websites often have a huge variety of content that is difficult for moderation to keep up with. This is especially true with platforms like YouTube where hundreds of hours worth of video content get uploaded every second. This basically renders it impossible to really screen content before it gets uploaded to any reasonable degree. Since many websites are hosted in the US, they follow the DMCA laws which essentially amounts to a shoot first, ask questions later mentality as far as copyright infringement is concerned.

Another angle of safe harbour provisions involves the network themselves where the carriers and service providers can’t possibly police every bit of data flowing through their network. So, safe harbour provisions are enacted to say that as long as they aren’t actively promoting copyright infringement or forward copyright complaints to an alleged infringer, then they are acting in good faith.

Especially from a website perspective, the idea is that as long as the operators reasonably act on complaints, then they are allowed to, well, not get sued out of existence because someone decided to post something that is actually infringing in the first place. After all, the operator clearly does not fully control what users are about to post on their site. That is just the nature of the Internet that enables free speech and innovation in the first place.

The major recording industry, meanwhile, has been a pretty consistent source of terrible ideas on this front. Time and time again, they demonstrate a general lack of knowledge of technology beyond the 1970’s and spend considerable amount of time and energy fighting technology rather than seeing this technological revolution as an opportunity to expand their business and broaden their business horizons in the business of selling music. This is a big part of why we so often refer to them as the “copyright industry” rather than the music industry, movie industry, etc. because their focus has shifted from selling such stuff to litigating and lobbying for tighter copyright laws pretty much on a constant basis.

The music industry, obviously, became quite notorious early on when they chose to file mass lawsuits throughout the 2000’s and 2010’s, suing the original Napster out of existence, and basically taking the approach of mounting teenagers head on metaphorical pikes as a warning to others. Despite all the evidence suggesting that the better approach would have been to invest in their own Internet infrastructure, set up shop to sell music, the decision was to effectively fight progress tooth and nail – even to the point of running their own businesses into the ground in the process.

While the likes of Apple did ultimately start doing the work for the industry to drag them kicking and screaming into the 2000’s, they still invested in snake oil DRM schemes. They even lobbied for even more draconian laws such as notice and staydown, three strikes laws, deep packet inspection, content filtering, anti-circumvention laws, anti-camming laws, and other laws that pretty much does nothing to support their cause in the first place. The typical rallying cry for those who see the error of the industry’s ways it “change your business model” for very good reason. Rather than fighting change, embrace it and find business opportunities in the first place.

There has been some rumblings that things might be changing within the industry. One example is that newer people are taking the reigns – some of who realize that the Internet might actually be here to stay to name one big brained realization. A recent open letter does lay out, once again, that the industry is still focused on fighting change even to this day. This, of course, lends credence to the idea that the music industry will never really change. The IFPI helped pen an open letter expressing their opposition towards the idea of safe harbour provisions found in the Digital Services Act in Europe. From the statement (PDF):

Among the points of concern to our sectors, there are three specific issues that we would like to draw attention to in particular:

1. The introduction of a “safe harbour” for search engines alongside “caching” services in Article 4 of the DSA would go against the EU’s general political commitment not to modify or broaden the liability limitations under the e-Commerce Directive. The goal of increasing the accountability of search engines should be achieved through the introduction of effective due diligence obligations, not by making them beneficiaries of a broad and unjustified “safe harbour”. This new “safe harbour” would fall below several existing national measures and obligations and would remove all incentives for search engines to stop enabling access to illegal or harmful content – and make money on the back of such activity.

2. Proposals establishing that intermediary services can continue to benefit from the “safe harbour” privileges even when they do not comply with their due diligence obligations would equally remove all real and impactful incentives for compliance with their obligations under the DSA. Diligent behaviour is and should continue to be a factor to assess the eligibility for “safe harbours”.

3. The lack of ambition in setting truly effective due diligence obligations fails to reflect the broad scope of illegal activity that takes place online. Extending the scope of application of the obligations to ensure the traceability of business users (“Know Your Business Customer”) is necessary to tackle the serious problem of illegal operators acting on a commercial scale and hiding behind false identities. There should also be more effective tools introduced when it comes to addressing rogue players, repeat infringers and systematic illegal activities. A meaningful mechanism for the enforcement of these obligations should be established to ensure that EU consumers have as little exposure as possible to illegal content, services, and products.

This shows that the methods being employed haven’t really changed. For years, the industry has employed the tactic of pretending that certain laws that are not bent to their will falls outside of the international norms. This is very familiar with people in many different countries including Canada where it was a heavily used tactic.

An example would be the instance where the industry demanded that Canada extend copyright term extension to life plus 70 years instead of life plus 50 years. The accusation levied by the industry is to say that not extending the copyright term to life plus 70 years falls outside of international norms and that Canada needs to update their laws accordingly. Obviously, this was a flat out lie because according to the Berne Convention, the international standard for copyright terms is, in fact, life plus 50 years, not life plus 70 years.

Similarly, we are not familiar with the idea of it being the international norm that caching content falls outside the scope of Safe Harbour provisions. In fact, to our knowledge, the US’s own Digital Millennium Copyright Act (DMCA), despite it’s notorious nature of being draconian from an copyright enforcement perspective, actually has safe harbour provisions surrounding the caching of content online.

For years, the industry has been working to try and chip away at such safe harbour provisions. This includes demanding a three strikes law like system, acting within a certain time window, implementing faulty filtering technology, and more. So, even if the argument is made that such requirements to qualify for safe harbour provisions are there, it is these qualifications that were heavily demanded by the industry in the first place through extensive lobbying on the international scene.

For those who are a little mystified over what “caching” does, we’ll offer a quick explanation here. Caching simply helps increase load times for websites among other things. A service like Cloudflare does offering such caching services. If you are in, say, Britain, and are loading a page hosted in the US, the older method would be that things like pictures and text would get downloaded from that server from the US. A more efficient method would be to have that site hosted on multiple servers from around the world. This reduces strain on that one server and shares the general data load all around.

What’s more, is that it’s going to be inherently easier for you to download that page from a server only located some 20 kilometres away as opposed to a third of the way around the world. Distance does matter even in the world of high speed data connections. Rather than covering such a long distance, you might actually be accessing a server that cached said page just to make it faster to load.

The act of mirroring certain kinds of content on servers closer to the user is a form of caching. That’s really all that is.

So, with that knowledge, you can apply it to this debate and ask what the industry is really freaking out about here. Well, this website, for instance, reviews video games. Recently, we wrote a review about Sonic the Hedgehog 3. Accompanying that review was a small thumbnail of the box art for the game itself. It is, of course, just a thumbnail at postage stamp level resolution. Still, it helps convey across to the reader that this is about that particular video game. The use is obviously Fair Use/Fair Dealing because it uses the artwork in a transformative way for the uses of journalism and criticism.

By extension, the argument is that if that particular web page gets cached, then someone might access that cache, take that image, and be able to print bootleg copies of the game. At the very least, be able to use that image to print boxes for the bootleg game itself. That thinking is, of course, idiotic because you’re not going to take a postage stamp resolution of an image, blow it up to be an uncompressed TIF file, and start printing. This despite what some movies would have you believe simply because technology and “lossy” formats simply do not work that way. The data is already lost (hence “lossy”).

Similarly, trying to demand new requirements for caching services to follow is also equally stupid. If you’re not going to be getting infringing material off of these services in the first place, what’s the point of trying to add an endless list of stipulations?

For these reasons (among others), people involved in technology will likely give a collective eye roll at what the organizations behind this open letter are calling for. Freaking out over the caching of thumbnail pictures is like freaking out that you ran over a used empty coffee cup on the road in your 18 wheeler truck as if you killed someone. Seriously? You’re really going to freak out over that? Here’s hoping that lawmakers will also treat these demands with a similar collective eye roll.

Drew Wilson on Twitter: @icecube85 and Facebook.

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