Felix Reda

Free software development as we know it is under threat by the EU copyright reform plans.

The battle on the EU copyright reform proposal continues, centering on the plan to introduce upload filters. In short, online platforms would be required to monitor their users’ uploads and try to prevent copyright infringement through automated filtering. As most communication online consists of uploads onto different platforms, such “censorship machines” have broad consequences, including for free and open source software (FOSS) repositories.

On these platforms, developers from across the world collaborate on software projects that anyone can freely use and adapt. Automated filters would be guaranteed to throw up many false positives. Automatic deletion means uploaders are presumed guilty until proven innocent: Legitimate contributions would be blocked.

The recent outcry about this in the FOSS community is showing some results: Our concerns are getting lawmakers’ attention. Unfortunately, though, most are misunderstanding the issue and drawing the wrong conclusions. Now that we know how powerful the community’s voice is, it is all the more important to keep speaking up!

Why is this happening?

The starting point for this legislation was a fight between big corporations, the music industry and YouTube, over money. The music industry complained that they receive less each time one of their music videos is played on a video platform like YouTube than they do when their tracks are listened to on subscription services like Spotify, calling the difference the “value gap”. They started a successful lobbying effort: The upload filter law is primarily intended to give them a bargaining chip to demand more money from Google in negotiations. Meanwhile, all other platforms are caught in the middle of that fight, including code sharing communities.

The lobbying has engrained in many legislators’ minds the false idea that platforms which host uploads for profit are necessarily exploiting creators.

Code sharing

There are, however, many examples where there is a symbiotic relationship between platform and creators. Developers use and upload to software repositories voluntarily, because the platforms add value. While Github is a for-profit company, it supports not-for-profit projects – it finances its free hosting of open source projects by charging for the commercial use of the site’s services. Thus open source activities will be affected by a law designed to regulate a fight between giant corporations.

In a recent blog post, Github sounded the alarm, citing three reasons why upload filters are a terrible fit for software projects:

1. Code needs to be filtered under this law because it is copyrightable – but many developers intend for their code to be shared under an open source license.
2. The risk for false positives is very high because different parts of a software project may be covered under different license terms, which is very hard for automated technology to adequately handle.
3. Automatically having to remove code suspected of infringing copyright may have devastating consequences for software developers who have built on common resources that they may find suddenly vanishing.

Concerns are being heard

In their latest draft, the Council of the European Union seeks to exclude “non-for profit open source software developing platforms” from the obligation to filter uploads. This amendment is a direct result of the FOSS community’s outcry. However, this exception would not cover for-profit platforms like Github and many others, even if only a branch of their operations is for-profit.

Rather than questioning the basic principle of the law, politicians are trying to quell criticism by proposing more and more specific exceptions for those who can credibly demonstrate that the law would adversely affect them. Creating such a list of exceptions is a Sisyphean task sure to remain incomplete. Rather, upload filters should be rejected as a whole as a disproportional measure that endangers the fundamental right to free expression online.

We can do it!

To achieve this, we need your help. The FOSS community can’t just solve problems with code: It has political clout, strength in numbers and allies in the Parliament. We have already started to effect change. Here’s how you can take action right now:

1. Sign the open letter at SaveCodeshare.
2. Use Mozilla’s free tool to call MEPs.
3. Tweet at the key players in the Parliament’s Legal Affairs Committee via FixCopyright.

Technical Sidenote:

• Fundamentally, three players are involved in the legislative process. The Commission drafted an initial legal proposal, which the European Parliament and the Council of the European Union can propose changes to. Within the Parliament, this legislation is first discussed in the Legal Affairs Committee, with each political group nominating a negotiator. Once the Committee has voted to approve the compromise established by the negotiators, it will be put to vote in the plenary of the Parliament, before negotiations begin with the other institutions. The exact legislative path so far can be found here.

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.