Copyright and Control Freaks

In 2019, the High Court of England and Wales ruled that by offering an index of non UK-based or unlicensed radio stations to UK residents, radio aggregator service TuneIn breached copyright.

In response the service has now geo-blocked thousands of stations leaving UK customers without their favorite sounds. Unless they use a VPN, then it's business as usual.

TuneIn is one of the most prominent providers of radio content in the world. Available for free or on a premium basis, its site and associated app provide access to more than 100,000 stations and podcasts. Unless you happen to live in the UK, which is now dramatically underserved by the company. Sued by Labels in the UK For Mass Copyright Infringement

In 2017, Sony Music Entertainment and Warner Music Group sued the US-based radio index in the High Court of England and Wales, alleging that the provision of links to stations unlicensed in the UK represented a breach of copyright.

One of the most interesting aspects of the case is that TuneIn is marketed as an audio guide service, which means that it indexes stations that are already freely available on the web and curates them so that listeners can more easily find them.

When stations are more easily found, more people listen to them, which means that TuneIn arguably boosts the market overall. Nevertheless, the labels claimed this was illegal and detrimental to the music industry in the UK on licensing grounds.

In response to the apparent decimation of its offering, TuneIn took to Twitter to address the complaints:

Due to a court ruling in the United Kingdom, we will be restricting international stations to prohibit their availability in the UK, with limited exceptions. We apologize for the inconvenience, the company wrote.

See further details in article from torrentfreak.com

During the Article 17 (formerly #Article13) discussions about the availability of copyright-protected works online, we fought hand-in-hand with European civil society to avoid all communications being subjected to interception and arbitrary censorship by automated upload filters. However, by turning tech companies and online services operators into copyright police, the final version of the EU Copyright Directive failed to live up to the expectations of millions of affected users who fought for an Internet in which their speech is not automatically scanned, filtered, weighed, and measured.

EU "Directives" are not automatically applicable. EU member states must "transpose" the directives into national law. The Copyright Directive includes some safeguards to prevent the restriction of fundamental free expression rights, ultimately requiring national governments to balance the rights of users and copyright holders alike. At the EU level, the Commission has launched a Stakeholder Dialogue to support the drafting of guidelines for the application of Article 17, which must be implemented in national laws by June 7, 2021. EFF and other digital rights organizations have a seat at the table, alongside rightsholders from the music and film industries and representatives of big tech companies like Google and Facebook.

During the stakeholder meetings, we made a strong case for preserving users' rights to free speech, making suggestions for averting a race among service providers to over-block user content. We also asked the EU Commission to share the draft guidelines with rights organizations and the public, and allow both to comment on and suggest improvements to ensure that they comply with European Union civil and human rights requirements.

The Commission has partly complied with EFF and its partners' request for transparency and participation. The Commission launched a targeted consultation addressed to members of the EU Stakeholder Group on Article 17. Our response focuses on mitigating the dangerous consequences of the Article 17 experiment by focusing on user rights, specifically free speech, and by limiting the use of automated filtering, which is notoriously inaccurate.

Our main recommendations are:

• Produce a non-exhaustive list of service providers that are excluded from the obligations under the Directive. Service providers not listed might not fall under the Directive's rules, and would have to be evaluated on a case-by-case basis;

• Ensure that the platforms' obligation to show best efforts to obtain rightsholders' authorization and ensure infringing content is not available is a mere due diligence duty and must be interpreted in light of the principles of proportionality and user rights exceptions;

• Recommend that Member States not mandate the use of technology or impose any specific technological solutions on service providers in order to demonstrate "best efforts";

• Establish a requirement to avoid general user (content) monitoring. Spell out that the implementation of Art 17 should never lead to the adoption of upload filters and hence general monitoring of user content;

• State that the mere fact that content recognition technology is used by some companies does not mean that it must be used to comply with Art 17. Quite the opposite is true: automated technologies to detect and remove content based on rightsholders' information may not be in line with the balance sought by Article 17.

• Safeguard the diversity of platforms and not put disproportionate burden on smaller companies, which play an important role in the EU tech ecosystem;

• Establish that content recognition technology cannot assess whether the uploaded content is infringing or covered by a legitimate use. Filter technology may serve as assistants, but can never replace a (legal) review by a qualified human;

• Filter-technology can also not assess whether user content is likely infringing copyright;

• If you believe that filters work, prove it. The Guidance should contain a recommendation to create and maintain test suites if member states decide to establish copyright filters. These suites should evaluate the filters' ability to correctly identify both infringing materials and non-infringing uses. Filters should not be approved for use unless they can meet this challenge;

• Complaint and redress procedures are not enough. Fundamental rights must be protected from the start and not only after content has been taken down;

• The Guidance should address the very problematic relationship between the use of automated filter technologies and privacy rights, in particular the right not to be subject to a decision based solely on automated processing under the GDPR.

The implementation of Art 17 (formerly Article 13) into national laws will have a profound effect on what users can say and share online. The controversial rule, part of the EU's copyright directive approved last year, has the potential to turn tech companies and online services operators into copyright police. It is now up to national Member States to implement the directive and to ensure that user rights and freedom of speech is giving priority over notoriously inaccurate filtering and harmful monitoring of user content.

The initial forays into transposition were catastrophic . Both France and the Netherlands have failed to present a balanced copyright implementation proposal. Now, the Germany government presented launched a public consultation on a draft bill to implement the EU copyright directive. The draft takes a step in the right direction. Options for users to pre-flag uploads as authorized and exceptions for every day uses are a clear added value from a user perspective. However, in its current shape, the draft fails to adequately protect user rights and freedom of expression. It seems inevitable that service providers will use content recognition technologies to monitor all user uploads and privacy rights are not considered at all.

We have therefore recently submitted comments to the German government with recommendations of how to improve the current version. Our message is clear: have the interest of users and freedom of speech in mind rather than solidifying the dominance of big tech platforms that already exist.