EU Flag

Earlier today, the European Parliament voted 348-278 to pass its new copyright directive.

The vote included all of the articles in the proposed legislation including Article 13 (previous coverage), which will require hosts to prevent the re-uploading of allegedly infringing material, and Article 11 (previous coverage), which requires search engines and other aggregators to pay for the use of headlines and news snippets.

An attempt to have all of the articles voted on individually was also defeated, this one by just 5 votes.

The bill still has one more key hurdle to clear. It will go back before the The Council of the European Union, which features the ministers from the 28 (possibly soon to be 27) members of the EU. However, that vote is seen as more secure as it has passed by wider margins there in the past.

Once that is secured, countries will have two years to implement the law. What this means for the UK with Brexit is unclear (as is just about everything with Brexit) but the EU will be heading into its 2019 parliamentary elections between May 23 and 26.

This raises a simple question: What happened? With so many parallels to the January 2012 fight over SOPA/PIPA in the US, what caused this to have such a different outcome.

The answer is a great deal and the differences may not just shape copyright, but the future of all internet protest.

The SOPA/PIPA Protests

SOPA Blackout Sample

On January 18, 2012 it was a very different story. The United States Congress was debating two separate bills, the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) that would have required ISPs, search engines, payment processors and other providers to block access to pirate websites.

This created a fear that the bills could be used for censorship and a groundswell of opposition began to rise against the bills that culminated in the famous January protests

. During those protests, Google blacked out its logo, Wikipedia and Reddit went dark and countless other websites displayed banners protesting the bills and encouraging people to contact their legislators.

Those legislators were inundated with emails and phone calls and, by the end of the day, many who had supported the bills had withdrawn their support and, just two days later, both bills were effectively dead.

Protestors against Article 13 (and the copyright directive at large) pulled heavily from that playbook. They encouraged widespread email and phone call campaigns to MEPs. Reddit and Wikipedia both blacked out their home pages in the EU and even took to the streets in protest.

However, this time around the campaign was not victorious. The reasons for this defeat are multiple, but they boil down to a simple fact: It’s a different time, a different government and a very different campaign.

To that end, here are 5 specific reasons why the campaign did not work and what it may mean digital protest in the future.

Reason 1: The EU Parliament is Not the US Congress

The EU Parliament is a larger body than the US Congress and its members are elected in through a unique process and the ways they listen to and engage with their constituents is also different.

This could actually be seen in September ahead of an earlier plenary vote on the bill. It was widely seen as likely to be defeated but an email and phone call campaign against the bill may have helped secure its passage.

I think it’s due to this message spamming campaign. I talked to some of my colleagues here [and they] are totally pissed off, cause in the streets there were a maximum 500-800 people last sunday… and we were only deleting emails for weeks now.”

German MEP Helga Truepel

In short, MEPs were angered by the online campaign, not swayed by it. When they looked and saw very limited protests, they felt they were being astroturfed.

While it is true that there were larger physical protests in the EU yesterday, they were still small compared to major protests the EU has seen, such as the yellow vest protests in France, which attracted nearly 6x the protestors in its first weeks.

While that’s an unfair comparison for many reasons, the fact is that the EU is used to much larger protests, especially considering that the protests were largely limited to Germany, just one of the 28 nations.

(Note: As with all protests, getting accurate numbers is difficult to impossible. Though some sources claim much higher numbers, local media report the figure to be around 40,000 at the busiest protest.)

Reason 2: Late to the Game

The EU legislative process is long, difficult and tedious. For a bill such as this to become law, it must pass three readings in both Parliament and the Council and must undergo a conciliation process after the second readings.

However, little attention was paid to the legislation until the second plenary reading, which was in September 2018. By then, the legislation had been kicking around the EU government for two years since its proposal in September 2016.

SOPA, meanwhile was proposed in October 2011 and was protested in January 2012. PIPA was proposed in December 2011.

This means that the EU copyright directive had been gathering steam for a year and nine months longer either SOPA or PIPA. During that time, a lot of momentum is built up by a bill as deals are struck, changes are made and work is put into it.

By the time a bill reaches a third plenary vote, which is what we had today, it’s unlikely to be derailed. Though anything can happen and there’s always a chance, momentum favored the bill from before the protests started.

Reason 3: Mistrust of Google/Facebook/Etc.

In February, the European Commission posted a now-removed article to its Medium account that was entitled “The Copyright Directive: How the Mob Was Told to Save the Dragon and Slay the Knight.”

The post explored how, in their view, Google, Facebook and other tech companies were leading the protest against the copyright directive.

The post was removed and the Commission apologized for it. Much of the language in the post was offensive to opponents of the bill and extremely unprofessional. That said, the post highlighted the skepticism the EU has about US tech companies.

Though most of the people who were protesting didn’t wish to do Google any favors, there’s also no doubt that many of the groups leading the charge against the bill were heavily funded by US tech interests.

That put a stain on the fruits of those campaigns and the letters/phone calls that they helped spur. Whether that’s fair or not is beside the point.

Reason 4: The SOPA/PIPA Lesson

The debate over SOPA/PIPA was marked with a great amount of fear mongering and scare tactics. It included a “Free Bieber” campaign even though Justin Bieber’s actions were never covered by the law and fear it would censor blog posts, which it couldn’t do.

In short, SOPA and PIPA were hailed as bills that would censor and destroy the internet, much like Article 13.

However, in the years since SOPA/PIPA, we’ve seen similar legislation get passed in other countries including the UK, Australia and many more. In those countries, the use of such blocks are limited, the internet works fine and copyright law wasn’t used as part of a major censorship machine.

In short, the sky wasn’t falling.

Unfortunately though, to engage large numbers of people opponents of laws like SOPA and the EU Copyright Directive have to present an absolute worst-case scenario. In short, they have to strike fear in people who might not otherwise care.

Those claims of doom and gloom have not held true in the past and MEPs had little reason to believe they would with Article 13.

Reason 5: The REAL SOPA/PIPA Lesson

SOPA was introduced by Lamar Smith, a Republican Representative from Texas. Literally the spark behind both SOPA and PIPA, he was at the center of the blowback over the bill.

That blowback resulted in him getting reelected to Congress three times, including later in 2012. Each time he was reelected by a margin of at least 26 points and his margin didn’t change significantly from other contested elections he faced.

In 2017, he announced his retirement from Congress and did not seek reelection in 2018. The SOPA/PIPA debacle never impacted his career.

None of the architects of SOPA/PIPA were voted out or otherwise punished for their roles. None of the opponents were really supported in any major way.

Much of this is owed to the way the US elections work, making most seats very safe. However, the EU has many of the same issues. In short, despite threats of a windfall elections, MEPs know that internet campaigns have not historically lead to widespread ousting of politicians.

Bottom Line

Back in September, we examined how the EU has come to govern the internet. With the passage of the GDPR, the EU took the lead on protecting privacy online. Now, with this passage, the EU is poised to take the lead on protecting copyright online.

And a big chunk of that lead is because of SOPA/PIPA. Following the protests, the US was hesitant to consider ANY legislation that regulated the internet. The combination of big tech interests and possible of mammoth protests kept US leadership quiet. However, the EU has shown it’s not scared of online protests and has an active mistrust of US tech interests.

The EU is moving forward with its plans to regulate the internet and any attempt to protest it will likely require a different playbook.

To that end, a heavier emphasis on organizing EU-wide physical protests will be a good first step. MEPs have already shown their disdain for the mass email/phone call tactics so it makes sense to try something else.

Obviously though, the biggest step would be to make the fifth reason wrong. However, that’s going to prove difficult as the two largest political groups both overwhelmingly supported the directive.

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