17.06.2019 by Lyudmila Vaseva

Code is Law and the EU Copyright Directive

What have Lessig and others realised 13 years ago what some MEPs still fail to grasp today

netzpolitik.org

On April 15 2019, the new European Copyright Directive was confirmed by the Council of the European Union. This final step after which the directive has to be implemented in national law of the member states went down somewhat silently, compared to the huge protests in the weeks and months before the vote in the EU Parliament. The final version of the directive made a lot of people angry and was generally considered a bad idea.

In 2012 the European Commission announced they’re revising copyright and in 2014 they presented the first report evaluating the state of EU copyright law. Many were hopeful. After all, this was going to reform the 2001 Directive which was no hit either, especially in terms of adequacy in relation to digital technologies and the Internet. However, regrettably, the final version of the current directive doesn’t live up to the expectations. Internet culture has received a slap in the face and people going to the streets to voice their discontent were disqualified by the Commission as a “mob”, bots, and being paid by Google. At the end, the interests of publishers and big performance rights organisations such as the German GEMA have prevailed.

Interestingly, in the week just before the directive was voted in favor of in the EU Parliament, I was reading the Intellectual Property Chapter of Lawrence Lessig’s “Code Version 2.0”. And my thoughts every other sentence were “Oh my, that’s really relevant right now” and “this other thing as well”. So I thought, I’d share what these still very relevant thoughts are that someone came up with 13 or maybe even 20 years ago (when the original “Code and other laws of cyberspace” book was published). And how, remarkably, people regulating copyright in cyberspace still haven’t gotten them.

For those of you not very familiar with the context, this is the book where this famous “Code is Law” thing came from. Or, the idea that source code and the material architecture of a space are just as effective (and sometimes even more so) than legal code in regulating behaviour. Because you can ignore law if you think you have good reasons to do so and are willing to face the potential sanctions. On the other hand, you can rarely ignore code, or the architecture of the system (unless you’re a technically experienced person or a superhero). You don’t get to decide whether code is unjust and you’re willing to face the consequences. You are just physically prevented from doing the thing.

For a good amount of the book, Lessig (a law professor, attorney and political activist on the fields of copyright and remix culture) illustrates how different forces used for regulating behaviour (code, law, norms and the market) can and do work together (and also how they sometimes contradict one another) and how, when crafting certain laws, it’s not obvious what the “right”™ choice is. It depends, he underlines, on the values we want to protect.

From my perspective, following quote best summarises the book’s Intellectual Property Chapter: “We are not entering a time when copyright is more threatened than it is in real space. We are instead entering a time when copyright is more effectively protected than at any time since Gutenberg.”

Lessig starts the chapter by tracing copyright jurisdiction over time, continues by examining and juxtaposing possible copyright regulators, and wraps up by outlining the pending choices he thinks society has to make regarding copyright.

According to him, historically, copyright law was confusing and difficult to understand but it wasn’t particularly relevant to regular consumers, so this wasn’t a big problem. The aim of this law was to regulate copies, but up until a couple of decades ago, very few people (or more organisations) were able to manufacture these. Hence, ordinary consumers could do whatever they pleased with the copies they owned. The first mass challenge for copyright was provoked by technologies like the Xerox’s copy machine and cassette recorders. Suddenly, quite a lot of people were able to make reasonably good copies of different media. Regulation demands were issued and at the end, in the case of copying audio, two regulators were applied: the market (the state imposed a tax on empty cassettes and recording equipment, parts of which were paid back to creators) and code (a mechanism was implemented which made every subsequent copy of a DAT cassette inferior to the original).

But the real foe of copyright protection entered the scene a bit later – digital technology. It made perfect copies and allowed them to be distributed with very little effort. The thing is, digital technology is all about making copies: you cannot view a movie or listen to a song in a digital format without your device making (at least temporally) a local copy of the piece.

There are two types of possible regulators in this context, Lessig claims: public law (which regulates copyright and punishes people who disregard it) and private fences (technological devices/mechanisms which block unwanted access). In his view, implementation of public law is quite expensive here: for one, it is really difficult for the law to distinguish between legitimate and illegitimate uses and then it also has to prosecute the uses deemed illegitimate. Installing private fences on the other hand is quite cheap (for the state at least, since this is no longer their responsibility), and will be the mode increasingly regulating copyright, Lessig fears. This is exactly what we are witnessing today: the law makers adopting a regulation which requires the setup of private fences (aka upload filters) and backing them up by threatening sanctions to everybody who fails to comply: “If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, […], unless the service providers demonstrate that they have: (b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works […]”

Private fences have been massively in place ever since the passing of the Digital Millennium Copyright Act in the USA in 1998 which, among other things, criminalises every attempt to circumvent technical measures for copyright protection (DRM technologies) even if accessing the underlying content would fall under the fair use doctrine. Now, “fair use” is a fairly US concept without an exact equivalent in European law, however the repercussions of such techniques are relevant globally. Because of technical limitations, similar to DRM technologies, upload filters will probably restrict much more content and uses than legally required, since uses such as parody, commentary or remix are not easily recognisable as such.

There are activists such as legal scholar Julie Cohen who view it as our moral obligation to circumvent such technologies regardless and make the contents available to the public. There is also Aaron Swartz who actually put this in practice and paid dearly for the extra-orbitant charges and state repression he was faced with.

The interesting question here is: why does the state bother in the first place? It enforces copyright law in order to give authors of creative content an incentive to continue creating content. This is a good thing. But, we must ask ourselves, what kind of culture this mindset and type of regulation promotes. If we want to reimburse and support professional culture, stronger regulations and cooperation with the GEMA are probably the way to go. But, as Lessig signals, there is also amateur culture. And amateur doesn’t mean inferior or bad, but simply that people are creating it not as a part of their professions. Over the centuries, amateur culture has constituted the bulk amount of culture. And, historically, it has never been regulated. This changes though in the digital world and the EU Copyright Reform is a vivid example hereof. What started as a wish to regulate “big platforms” such as Youtube is ending up creating legal uncertainty for amateur culture creators. In the directive’s text, an exception was adopted for satire (which will have big troubles functioning properly on a technical level), but there is still no officially granted right to remix. “Mit der Schrotflinte auf Youtube geschossen, halbes Netz mitgetroffen” (“Shot at Youtube with a shotgun and hit half the Internet”) states a headline in the German blog on Internet politics and culture netzpolitik.org. So, is this the beginning of an end for amateur culture?

Was fair use a bug or a feature? Was it (at least in the USA) historically granted just because it wasn’t feasible to efficiently exclude it? DRM technologies have already made it possible to create perfectly locked media.

At the end of his Intellectual Property chapter, Lessig claims we are facing following pending choices: whether to allow intellectual property in effect to become completely propertised; whether to allow the expansion of intellectual property to drive out amateur culture; and whether to allow this regime to erase the anonymity latent in less efficient architectures of control. My fear is, the EU Copyright Directive made a choice, in regard at least to the first two points. And that it isn’t the choice I would’ve made.