Publicpolicy July 2018

publicpolicy@lists.wikimedia.org

21 participants
11 discussions

Announcing the Wikimedia Foundation's latest Transparency Report
by Leighanna Mixter 20 Jul '18

20 Jul '18

Hello everybody, The Wikimedia Foundation Legal team is pleased to announce the release of the Foundation's most recent Transparency Report <https://transparency.wikimedia.org/>. We release this report twice annually to document requests the Foundation receives to alter or remove content on the projects or disclose nonpublic user data. This edition of the report covers requests we received from January to June 2018. During that period, the Foundation received 388 requests to alter or remove content on the projects. We took no action in response to these requests, and most issues were directed to the community, where they could be addressed according to established community processes. We also received 12 Digital Millennium Copyright Act <https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act> notices, and granted two of them. As usual, the report also includes stories of interesting requests (including the block in Turkey), and an FAQ with more information. In addition to the online report, we have also released a completely refreshed edition of our print report, featuring the latest data and stories. These reports will be available at Wikimedia community events throughout the next six months, beginning today at Wikimania. If you're at Wikimania, find Leighanna to pick one up! Please check out the full report online <https://transparency.wikimedia.org/>, and see our blog post <https://blog.wikimedia.org/2018/07/20/wikimedia-releases-ninth-transparency…> for more information. Best, Aeryn Palmer, Jim Buatti, and Leighanna Mixter -- Leighanna Mixter Legal Counsel Wikimedia Foundation 1 Montgomery Street, Suite 1600 San Francisco, CA 94104 lmixter(a)wikimedia.org NOTICE: *This message might have confidential or legally privileged information in it. If you have received this message by accident, please delete it and let us know about the mistake. As an attorney for the Wikimedia Foundation, for legal/ethical reasons I cannot give legal advice to, or serve as a lawyer for, community members, volunteers, or staff members in their personal capacity. For more on what this means, please see our legal disclaimer <https://meta.wikimedia.org/wiki/Wikimedia_Legal_Disclaimer>.*

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What happened with the Reiss Engelhorn Museum case?
by Ryan Kaldari 18 Jul '18

18 Jul '18

Two years ago, the Wikimedia Foundation and Wikimedia Deutschland lost an important case against the Reiss Engelhorn Museum in Germany,[1] but according to the press, we were intending to appeal the decision.[2] Since then, I haven't heard anything else about the case. Did we ever proceed with an appeal? 1. https://blog.wikimedia.de/2016/06/21/erklaerung-zum-fall-reiss-engelhorn-mu… 2. https://arstechnica.com/tech-policy/2016/06/digitising-public-domain-images…

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Wikimedia Foundation signs email privacy letter
by James Buatti 17 Jul '18

17 Jul '18

*Greetings friends,On 13 July, the Wikimedia Foundation signed on to a Digital Due Process Coalition <https://digitaldueprocess.org/> letter asking the U.S. Senate to adopt the Email Privacy Act <https://en.wikipedia.org/wiki/Email_Privacy_Act>, a bill that would require the U.S. government to obtain a warrant <https://en.wikipedia.org/wiki/Warrant_(law)> before searching the contents of email communications. We are proud to join with the broad group of civil society organizations and businesses that are speaking out on this issue. The Foundation first joined the Digital Due Process Coalition in 2013 to advocate reform of the Electronic Communications Privacy Act <https://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act> (ECPA). In our view, one of ECPA's greatest deficiencies is the lack of a warrant requirement for certain kinds of email communications. While imperfect, we believe that the Email Privacy Act would go a long way towards addressing these concerns. This letter is part of our longstanding commitment to user privacy. We believe that, where possible, governments should not be able to access the contents of private communications without first demonstrating probable cause <https://en.wikipedia.org/wiki/Probable_cause> to a neutral judge or magistrate. For those interested, we have attached a copy of the letter here. Thank you very much. Cheers,Jim * -- James Buatti Legal Counsel Wikimedia Foundation 1 Montgomery Street, Suite 1600 San Francisco, CA 94104 NOTICE: This message might have confidential or legally privileged information in it. If you have received this message by accident, please delete it and let us know about the mistake. For legal reasons, I may only serve as an attorney for the Wikimedia Foundation. This means I may not give legal advice to or serve as a lawyer for community members, volunteers, or staff members in their personal capacity.

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JURI copyright mandate rejected by EP plenary
by Dimitar Parvanov Dimitrov 10 Jul '18

10 Jul '18

Dear list, The plenary of the European Parliament has just rejected the Legal Affairs Committee with 278-318 votes and 31 abstentions. This was a roll-call vote so will we know exactly who voted how. This was a very tiring campaign that took us on an emotional rollercoaster ride. Thanks to all volunteers and staff who helped. I am convinced that it was us and our actions that made the difference of 30 votes possible. Please remember though, that this just means that the EP will review the text in September in plenary. We will need to make sure amendment proposals are made and they receive a majority. We will start working on this right away later today, but for the moment you will understand that I need a drink. Cheers from Strasbourg, Dimi

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Public policy meetup @ Wikimania Cape Town
by Dimitar Parvanov Dimitrov 06 Jul '18

06 Jul '18

Salut la liste ! There will be a public policy meetup at Wikimania. *Thursday from 17:00 in the Wale room of the City Bowl hotel. * Sign-up and more info here: https://wikimania2018.wikimedia.org/wiki/Public_Policy_Meetup Cheers, Dimi

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06 Jul '18

Hi, Some Wikimedians are wondering if this copyright law have an impact on WP since the servers are in the United States? And do we know how many countries are concerned by this directive? With Free trade agreements, countries outside EU could be impacted (Switzerland ? Tunisia ?...) Pyb

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Italian Wikipedia blackout
by Jan Ainali 04 Jul '18

04 Jul '18

If anyone has missed, last midnight itwiki started displaying a message in protest of article 11 and 13. A few pages are whitelisted, but in general you are taken to the message when visiting. https://it.wikipedia.org/wiki/Wikipedia:Comunicato_3_luglio_2018

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EU Policy Monitoring Report - June
by Dimitar Parvanov Dimitrov 03 Jul '18

03 Jul '18

tl;dr This time we will call it a “EU copyright reform special”, so prepare to read a single-issue report. This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor === What the JURI Committee Adopted: It took the secretariat of the Legal Affairs committee a while to circulate a consolidated text on what was exactly adopted. There has been an erratum on Article 11, paragraph 4, but the text is pretty much available now. See - [1] --- Article 13: Article 13 changes the liability regime for most online platforms allowing users to upload content by requiring them to sign deals with any requesting rightholders. Else, the online platforms must take measures to assure the non-availability of infringing content. The result of all this is that platforms are directly liable for their users. --- Wikimedia carve-out for Article 13: Article 2, paragraph 1, point 4b defines who falls under the new liability regime. It is sloppily written, but says “Services acting in a non-commercial purpose capacity such as online encyclopaedia”. We don’t think only Wikipedia is exempted, as "online encyclopaedia" is only an example (“such as”). A bit of an uncertainty is cause the use of the term “services” rather than “platforms”. But this way GitHub, that has a non-commercial code sharing service on a platform that also offers commercial products, can probably also benefit. The issue with this is, of course, that Wikimedia and GitHub were simply loud enough in Brussels and thousands of services are probably being forgotten. --- Article 11: This article requires Member States (and by extension EFTA countries) to establish a new neighbouring right for press publishers that lasts for 20 years. So 32 new parallel neighbouring rights on the internet. <sarcasm>Yey!</sarcasm> The idea is that news publishers should be able to control the previews shown of their articles online and demand remuneration for it. In order to appease some of the criticism the committee tried to cushion the text by saying that the new right “shall not prevent legitimate private and non-commercial use of press publications by individual users” and “shall not extend to acts of hyperlinking”. Both don't go a terribly long way to appease the masses. We have had the discussion in the past about sharing a photo of the Atomium on Twitter - commercial or non-commercial? Probably commercial. Also, the EU Court of Justice jurisprudence is quite unclear about what a link constitutes. Only alphanumeric bit.ly like links, or can it contain the title of the article? Either way, bibliographies or further reading lists of recent news publications are covered and would require licensing. --- (Some) public domain safeguarding: In Article 5 we did manage to get in a very limited (Cavada!) public domain safeguard that reads as follows: Member States shall ensure that any material resulting from an act of reproduction of material in the public domain shall not be subject to copyright or related rights, provided that such reproduction is a faithful reproduction for purposes of preservation of the original material. As you may imagine, we were trying to fix or remove the part after the comma. In the end this half sentence is quite unclear and five lawyers are telling us five different things about what it would mean. This is something to grind down during trilogue, but even so, it at least should solve the Museo Thyssen-Bornemisza copyright claims on medieval art. [2] --- No new exceptions: The user-generated content exception was voted down, although the MEPs, in a demonstration of them not knowing what they are doing at least some of the time, adopted its recitals. So was the Freedom of Panorama exception. So no news here. --- More rights for rightsholders: To emphasise the point, the the committee majority was solidly on the side of new exclusive rights but no new exceptions, it adopted some goodies for sports events organisers: Article 12 a Protection of sport event organizers Member States shall provide sport event organizers with the rights provided for inArticle 2 and Article 3 (2) of Directive2001/29/EC and Article 7 of Directive2006/115/EC. And a licensing requirement for image searches: Member States shall ensure that information society service providers that automatically reproduce or refer to significant amounts of copyright-protected visual works and make them available to the public for the purpose of indexing and referencing conclude fair and balanced licensing agreements with any requesting rightholders in order to ensure their fair remuneration. === Procedure & next steps: So the Legal Affairs committee adopted a text and wants to start negotiating with the Council on the final version (trilogue). But here’s how things will go. --- 5 July Vote: On Thursday the JURI mandate will be challenged in plenary. One tenth of MEPs can challenge pretty much any decision in plenary. This will happen and a vote will be held. All 750 members will vote and a simple majority is enough. --- If the mandate is confirmed: In this case trilogue meetings will be held beginning in September. At these meetings representatives of the Commission, the Council Presidency and the European Parliament (rapporteur and shadow-rapporteurs) will be hammering out the final wording. Seen the JURI committee text and the Council text are already quite compatible, no major changes can be expected. --- If the mandate is rejected: Then the text will be re-opened in September (most likely) in plenary and it will be possible to table and vote on amendments. We would need 10% of the Parliament, so 75 members, to propose an amendment. --- Final Vote: Regardless of the path taken, a final vote in both chambers (Council and Parliament) will need to be held to adopt the Directive text finalised in trilogue. This is expected to happen December/January. If it takes longer than this, we’ll be getting very close to elections and risk not finishing the reform within this legislature (can be bad or good). === Wikimedia actions: In the past years and months, but more notably in the past days several Wikimedia actions have been organised to prepare for the 5 July vote and voice our issues. Here is a selection: --- Press Conference in Vienna: Katherine Maher (WMF), Claudia Garád (WMAT), Dimi (FKAGEU) and Thomas Lohninger (epicenter.works) organised a press conference on Friday to mark the beginning of the Austrian Presidency and to get the national press up to speed on copyright. [3] --- Banner on Italian Wikipedia: Italian Wikipedia has decided to run a banner. [4] See it here [5] --- Banner on English Wikipedia: It looks like the English Wikipedia will run a somewhat neutrally worded banner on Tuesday. [6] --- Statement by the Wikimedia Foundation board and the General Legal Council: The board of trustees of the Wikimedia Foundation has unanimously adopted a statement on the EU copyright package, saying that it contradicts our vision and calls for rejection of a mandate based on the current text. [7] Meanwhile Eileen Hershenov explains how the proposed text will hurt the web and Wikipedia. [8] --- Vote in Strasbourg: Expected on Thursday before noon. Three Wikimedians will be inside the building in the days ahead in order to meet MEPs and staff to deliver last arguments. === What our opponents are saying: Always important to keep an eye on the opposition. --- Voss: The rapporteur is saying himself that he is unsure about how the plenary vote will go. [9] He is even publicly stating that parts of his own group won’t support him. This is astonishing for the EPP group, the parliament’s largest and most disciplined one. It could, however, also be a way to rally the troops. --- Crying #FakeNews: Meanwhile collecting societies and rightholder groups have taken to Twitter and personal meetings to say that upload filters aren’t part of the text, while explaining that upload filters are already deployed and thus not scary. Ah, and to say that all the opposition to Article 13 is essentially “fake news”. [9][10] --- Cultural organisations and their ministries: When the Berlin Philharmonic starts supporting Article 13 publicly, you know we got ourselves a big policy brawl. [11] Meanwhile in Austria, all political groups had stated that they would vote against the mandate. Then their Minister of Culture sent around a letter to MEPs urging them to support it. Now the Austrian EPP position seems a bit more shaky than last week. --- And the Ministries: === [1] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2b… [2] https://www.museothyssen.org/en/collection/artists/duccio-di-buoninsegna/ch… [3] https://derstandard.at/2000082513446/Bundesregierung-wirbt-trotz-FPOe-Kriti… [4] https://it.wikipedia.org/wiki/Wikipedia:Bar/Discussioni/L%27Unione_Europea,… [5] https://meta.wikimedia.org/w/index.php?banner=EU_Copyright_Directive_Italia… [6] https://en.wikipedia.org/wiki/Wikipedia:Village_pump_(proposals)#Proposals_… [7] https://meta.wikimedia.org/wiki/EU_policy/Wikimedia_Foundation_Board_of_Tru… [8] https://blog.wikimedia.org/2018/06/29/eu-copyright-proposal-will-hurt-web-w… [9]https://twitter.com/LauKaya/status/1012247706033672192 [10]https://twitter.com/cepic_sf/status/1008642206423502849 [11]https://twitter.com/DanielsEuroSky/status/1005149480772096001 [12]https://twitter.com/michelreimon/status/1012705058184556548

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Response to recent developments of United States travel ban
by Katherine Maher 02 Jul '18

02 Jul '18

*This letter is also available on Meta-Wiki here: https://meta.wikimedia.org/?curid=10631068 <https://meta.wikimedia.org/?curid=10631068>* *Please consider supporting with translations. * Dear friends, On Tuesday, the highest court in the United States, the Supreme Court, ruled in favor of the current U.S. administration’s restrictions[1] on travel and immigration from seven countries.[2] In a 5-4 ruling, the Court found that the restrictions were lawfully created, despite their breach of the longstanding ideals of the U.S. immigration system and disturbing comments [3] made by the current administration about the religious basis for some of these restrictions. Of the seven countries named, at least three have active Wikimedia communities. The Wikimedia chapter in Venezuela, Iranian Wikimedians user group, and proposed Libyan user group represent the reality that our movement has no borders. Our mission does not discriminate, it unites: in these and other countries, we have friends, allies, and fellow Wikimedians. To our fellow Wikimedians, particularly those from or with family in affected countries: we stand with you and reject the premise of this outcome. Our movement is possible because of the belief that everyone, everywhere, should be able to contribute to shared human understanding. We believe in a world where every country, language, and culture can freely collaborate without restriction in our shared effort of making free knowledge accessible to every person. Wikipedia is proof of what can happen when these freedoms are unrestricted. When our ability to come together is limited, the world is a poorer place. The Wikimedia Foundation has opposed the restrictions since earlier versions were first introduced. We responded to an executive order in early 2017[4] by joining many other organizations and companies in signing a series of amicus briefs before the courts hearing these cases.[5] We have posted an update on the Wikimedia blog detailing our position on the most recent outcome of this case. [6] We are mindful that these restrictions may have real impacts on individual staff and community members, as well as our families and communities. The Wikimedia Foundation rejects the spirit of this ban and similar restrictions in place around the world that treat some more equally than others. Our commitment to our global ethos and shared vision will continue to guide our policy efforts into the future, as we strive to uphold the values that make our movement possible. Katherine [1] https://en.wikipedia.org/wiki/Executive_Order_13780 [2] https://www.apnews.com/3a20abe305bd4c989116f82bf535393b/High-court-OKs-Trump's-travel-ban,-rejects-Muslim-bias-claim [3] https://www.aljazeera.com/news/2015/12/donald-trump-calls-halt-muslims-ente… [4] https://blog.wikimedia.org/2017/01/30/knowledge-knows-no-boundaries/ [5] See https://blog.wikimedia.org/2017/02/06/amicus-brief-immigration-travel-restr…, https://blog.wikimedia.org/2017/03/15/amicus-brief-us-travel-restrictions/, and https://blog.wikimedia.org/2017/09/18/amicus-brief-us-travel-immigration/ [6] https://blog.wikimedia.org/2018/07/02/supreme-court-immigration-wikimedia-v… -- Katherine Maher Executive Director Wikimedia Foundation 1 Montgomery Street, Suite 1600 San Francisco, CA 94104 +1 (415) 839-6885 ext. 6635 +1 (415) 712 4873 kmaher(a)wikimedia.org https://annual.wikimedia.org

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Feedback on art. 13 op-ed rebuttal
by Matthias Smed Larsen 02 Jul '18

02 Jul '18

Hello everyone On the 23rd of June, Danish MEP Morten Løkkegaard (Danish Liberal Party / ALDE) wrote an op-ed in the Danish newspaper /Berlingske Tidende /defending the copyright proposal. (See https://www.b.dk/kronikker/regulering-af-internettets-vilde-vesten-er-ikke-…). At the WMDK board meeting on the 25th we decided we should try to write a rebuttal and see if the paper would bring it. I'm hoping to get board approval and send it to the paper tomorrow so that it might possibly be printed or posted on their website on the 4th, the day before the vote. Obviously it's in Danish, but I've created a translation: On the 23rd of June, Morten Løkkegaard published an op-ed defending the European Commissions controversial proposal for a new directive on copyright. His colleague in the ALDE-group, Jens Rohde, was also arguing for it on Twitter where he characterized opponents who had contacted him regarding the proposal as hackers, spammers, internet communists or perhaps all of them at once. Løkkegaard and other supporters of the proposals have an easy foundation to argue from: Copyright is not something the average citizen thinks about in their daily life, and very few people have the time and interest to read the 33 page long proposal as well as the relevant amendments, opinions and other relevant material about the legislation, and even fewer people have the relevant knowledge to understand what the directive actually does. That makes it possible for Løkkegaard and co. to frame the debate however they like, which is why one should be observant of the fact that they never actually refer to the text of the proposal. Contrary to Løkkegaard and other proponents of the proposal, Wikimedia Denmark, along the line of other nonprofit-organizations such as the Electronic Frontier Foundation, Creative Commons and European Digital Rights (EDRi), that the proposal is disproportionate, will strangle innovation and free knowledge excahnge on the internet, and doesn't adequately consider legal use of copyrighted material. A long line of experts have also criticized the proposal for the same reasons. We're opposed to both article 11 and 13 of the proposal, but are choosing to focus on article 13 since that is the most damaging one. Article 13 fundamentally changes who is liable for copyright infringing material on the internet, there is no disagreement on this point. Until now, the "notice and takedown"-method has been used, where a hosting provider such as YouTube or Flickr are only liable for infringing material if they are made aware of it and then refuse to or refrain from removing it, a rational way of doing things and in line with how we traditionally look at liability. With the new directive, hosting providers have to actively enter into agreements with copyright collectives regarding the hosting providers' users' use of the rightsholders material or otherwise be directly responsible for copyright infringing material on their platforms, regardless of intent (art. 13 sec. 1 as amended). As a part of these agreements, or if the rightsholders refuse to or don't provide license agreements, the hosting provider has to implement content recognition filters that let rightsholders scan uploaded content to check whether it contains infringing content (likewise section 1). This is where the proponents of the directive start protesting and claim that the directive does not mandate that hosting providers use content recognition filters, they're just mentioned as a possible solution, and the proponents were so nice as to remove two thirds of the mentions content recognition filters in the proposal! However, it doesn't take much consideration to realize that this is the only way to protect oneself from liability. Regardless of the wording, article 13 is a de facto mandate to implement content recognition filters. This is problematic for multiple reasons. Content recognition filters cannot respect legal use of copyrighted material, the Danish quotation rule for example. Prior experience from platforms such as YouTube, which already uses a content recognition system has shown that when movie or game critics use short snippets of copyrighted material to contextualize their critique, something which is allowed under their respective local laws, they almost always get caught up in content recognition filters that "claim" the video on behalf of rightsholders. This is because of the automated nature of content recognition: it is impossible to manually go through the large amount of content posted on hosting providers' platforms, so rightsholders automate the process, and thus context dies. It is completely irrelevant whether your use of a text excerpt from a copyrighted book is protected under the right of quotation, an automated proces cannot adequately adress that. By the way, that's what is meant when article 13 is criticized for strangling free expression, as opposed to how Løkkegaard frames it, and it isn't changed by the weasel words regarding "fundemental rights" that has been added multiple places in the proposal after it was subject to criticism (such as recital 39 as amended). Proponents of the proposal will probably point to article 13. sec. 2 which mandate that hosting providers establish a complaint process for users who feel that they have been incorrectly impacted by content recognition filters. Remarkably, the proposal does not further explain what such a complaint process would contain other than the fact that it should be "without delay", that rightsholders must "justify" their characterization of the content as infringing, and that the identity of users should not be revealed to the rightsholder (art 13. sec. 2). This phrasing is incredibly vague and could result in widely different protection of user rights in the individual member states, somewhat ironic for a proposal meant to harmonize copyright in the EU. Regardless of each states implementatoin, this proces essentially means that the user is guilty until proven innocent, something which is contrary to fundemental EU principle. As a supporting organization for Wikipedia and Wikimedia, article 13 is harmful to projects like ours that freely let users change the contents of our platform, a model that doesn't work if content recognition filters have to check every contribution. Proponents of the directive have tried to protect themselves against this criticism through recital 37a which carves out hosting providers with "non-commercial purposes such as online-encyclopedias […] open source-software development platforms" or "scientific archives". This protection is inadequate. First of all, the phrasing is incredibly vague. Unless you are literally a non-commercial online-encyclopedia, it's hard to know whether your fall under the phrasing of the carveout. Furthermore, the proposal doesn't explain how platforms that are primarily non-commercial but still have some connection to commercial enterprises should be treated. Wikimedia Commons, the media platform that supports Wikipedia, is a non-commercial venture, but the images hosted on the platform are meant for free use and thus can be used in a commercial context. GitHub is a platform that is primarily used for open source-software development and which is primarily free to use, but the platform also offers commercial solutions for companies. Are these two examples exempt from the directive? Secondly, it's worth noting that Wikimedia and Github have spent a lot of resources making our opinion known in Brussels, so even if you assume that Wikipedia, Wikimedia Commons and projects like GitHub are covered by the exemption, it looks like it's been written specifically to appease us, but doesn't do anything further to protect smaller actors that don't have the same political impact. That is unacceptable. The average reader would probably think that all this is extremely esoteric and hard to understand, and that is pretty much true. However, one cannot let complexity make it possible to pass what is at best good-faith legislative carelessness, at worst a deliberate limitation on the rights of citizens. Article 13, and other parts of the proposal for that matter (such as article 11), will affect anyone who uploads conent to the internet, and it is extremely important to be watchful of how the Danish members of the European Parliament vote on the proposal. The parliament votes on the directive on the 5th of July, and it is imperative that it isn't passed. I know some of the phrasing is a bit awkward, but that's mostly down to the translation. Any feedback from the publicpolicy list would be appreciated. -- Best Regards, Matthias Smed Larsen

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Publicpolicy July 2018