In recent years the European Commission has proposed and adopted various legislative changes to help combat online piracy.
These changes have been spurred on by major copyright holders, who have long called for stricter enforcement of pirated content online. At the same time, digital rights groups and some legal experts are concerned that fundamental rights are at risk by increased filtering.
When it comes to the Digital Services Act proposal, neither ‘side’ is satisfied. The new regulations improve the takedown process and will deal with ‘repeat infringers.’ However, there are no ‘staydown’ requirements, which was a priority item on the copyright holders’ wishlist.
These and other issues were extensively discussed in a webinar that was organized by the European Audiovisual Observatory earlier this month. The list of speakers included Stan McCoy from the Motion Picture Association (MPA). At least, that was the plan.
When McCoy was asked to share his thoughts his presentation was abruptly ‘hijacked’ by a cybercriminal named “Dan McCrook,” who shared his opinion on the proposal from a cybercriminal perspective.
“Stan’s feed being hacked by me, his evil twin Dan McCrook,” he said. “In replacement for whatever boring presentation Stan was going to give you about the DSA, I’m going to offer you today a cyber criminal’s guide to the Digital Services Act.”
According to “McCrook” there is little to worry about for pirates. The DSA introduces Know Your Business Customer (KYBC) requirements, as copyright holders requested. However, these only apply to marketplaces and not to hosting services or other platforms pirates commonly use. So that’s good news for criminals.
Re-upload Scripts Still Work
The DSA isn’t going to make it much harder to upload copyright-infringing content either. While there are some procedural changes to the takedown process, there is no “staydown” requirement. This means that pirates can continue to use their ‘re-upload’ scripts.
“We’re well adapted to notice and action. There are actually thousands of software scripts available for free on the internet that will real re-upload your illegal content immediately. Just if it ever should happen to get taken down from your favorite pirate cyberlocker. So good news for us to have minimal change on that front,” McCrook said.
On top of that, newer piracy business models often use IPTV or app-based models which don’t rely heavily on traditional URLs. This means that the proposed legislation will do little to curb those activities.
“I do a lot of my cybercrime through app-based technologies that don’t even use URL technology, so that’s good news. Basically, the DSA proposes process changes around notice and action but no staydown and therefore happily, from my perspective, no real disruption of the current cybercrime business model,” McCrook noted.
Try Proving Deliberate Collaboration
Finally, McCrook is pleased to see that online platforms will only lose their liability exemption if it can be proven that these services “deliberately collaborate” with pirates or other cybercriminals. This will be quite a challenge.
“Good luck seeing inside the mind of the platform operator and proving deliberate collaboration. I think that’s likely to help my platform of friends avoid liability even if it can be shown that their service is objectively designed to favor illegal content.”
Despite the somewhat cynical presentation, it’s clear that the MPA is not happy with the current proposal. And after ‘the real McCoy’ regained control over his feed, he made this pretty clear as well, calling for stricter technology-neutral legislation.
If anything, it’s clear that we can expect another clash between copyright holders, various technology companies, and rights groups, over how far copyright-related legislation should reach. This is a process that could drag on for years, as the Copyright Directive made clear.
Article 17 is Still Contested
Exactly two years ago, the European Parliament implemented the Copyright Directive, including the controversial Article 17. This requires online services to license content from copyright holders or, if that is not possible, to ensure that infringing content is taken down and not re-uploaded to their services.
Today, EU member states were expected to have the language transposed into local law. While many have, including Denmark, which finalized everything late last week, plenty of uncertainty remains.
For example, late last week the European Commission issued its guidance on the transposition of Article 17, which may or may not lead to more tweaks in local laws.
However, the real wait is for the EU Court of Justice, which will soon decide on Poland’s request to get rid of Article 17’s ‘filtering’ obligation. Among other things, the country argued that this will limit freedom of expression and lead to censorship.
We wonder what McCrook and his friends would make of all of this?