Article 13 & Coding Law

Over supper last night, my son asked me my opinion on Article 13. As an 11-year old who lives on YouTube, he has been dragged into the debate following YouTube demigods like PewDiePie and Shane Dawson in uproar. My daughter, listening with half an ear, suddenly stretched her eyes, saucer-like: “What? No more memes?”

The European Parliament made some drastic changes to the copyright rules of the European Union. It has caused great debate since its passing over the last few days, my son apparently being the biggest anti-13er of them all.

So what is Article 13 and the uproar all about?

As it stands copyright infringement is the duty of the holder of the rights. If I see you use my content on YouTube or social media for instance, the onus rests on me to protect my rights and notify the relevant platform of the copyright infringement and assert my rights as right-holder. The relevant company is only then expected to remove the content from their platforms.

Article 13 shifts this to the tech companies. Read in full, the understanding is that the responsibility moves to them to ensure their platforms take precautionary steps to possible copyright breaches. (Article 13 has subsequently been renumbered to Article 17, but publicly Article 13 seems to have stuck.)

This has caused an uproar, claiming the tech giants will use pre-filter systems to prohibit copyrighted material from being placed on the platform in the first place.

Goodbye memes! Goodbye GIFs!

“Fare thee well,” cry my young ones.

“The transformation of the internet from an open platform for sharing and innovation into a tool for the automated surveillance and control of its users.” – Tim Berners-Lee, the inventor of the worldwide web and a group of tech companies, in a letter addressing the European parliament in 2018 on the matter.

Is this the case? There’s a lot we don’t understand about AI and the complexity of its full expanse as lawyers and laypeople. But the one thing we do know: there is no way to crack a code as a layperson. From your suitcase lock to a password of your own user account to your pin code. If you’re out, you’re out.

Code as Power

This whole question lead to me to a recent read by Jamie Susskind, Future Politics. In this mammoth undertaking, of profound future concepts into a singular, engaging and surprisingly digestible book, Susskind ventures into the possible world where tech has seeped even further into our world. This new collective world of digital and ‘real’, he refers to as the digital lifeworld.

In this new lifeworld, he discusses the aspect of Code as Power by suggesting that power will take on three forms in the future; that of force, scrutiny and lastly perception-control. All of which are increasingly done by code.

Article 13, case in point. 

If we place the onus on the tech giants to eradicate copyright on their platforms, the platforms will use code to detect copyright. YouTube already has something like this in a system called Content ID. It detects copyrighted music and so forth. With Article 13, this code will become way stronger in its filtering abilities, detecting innocent memes and GIFs as an example and would prohibit the content from being loaded in the first place.

The problem is, no matter how much you try to convince your computer with the upload that it’s legally fine to proceed, it simply won’t. Algorithms don’t get it, yet. As Susskind puts it, “It seeks to generate unambiguous commands with no grey areas or room for interpretation.”

So what happens when the law itself is coded into our world and the sanctions are not after-the fact penalties, but rather preventative measures that disallow us from the act in the first place?

This brings us into a new realm where choice and free will is threatened by code that does not merely flag or report suspicious behaviour, but alters our behaviour.

“Because of code’s ability to direct our conduct in a finely honed way, many distinguished thinkers, following the pioneering work of Harvard professor Lawrence Lessig, have argued that code is law (or at least that code is like law).” – Susskind, Future Politics

No matter how badly I want to get into a password-protected phone, with life saving information, the code disallows me to do so, no matter the circumstance. And so there are many more examples of how code prevents me from doing something. Apple prevents me from sharing my music with others or Amazon prevents me from sharing my eBooks. Code is like a giant aluminium door with a flashing red light – NO ENTRY.

The code preventing bad behaviour is already there and set to be coded into more and more of our world, like self-driving cars. No more speeding or red-line parking, the computer says NO. Article 13 is merely another example pointing to this possible new world where code becomes part of our justice system as enforcer, but without the trial.

Are the G-MAFIA, (Google, Microsoft, Amazon, Facebook, IBM and Apple) as Amy Webb calls them, our new enforcers of justice and benefactors of rights? 

Jackie Nagtegaal  is a futurist, with a keen interest in the legal ecosystem. As an admitted advocate who landed in the world of NewLaw, by heading up an alternative legal service and legal tech company, she has a full-circle understanding of the landscape, current trends and future developments.

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