At the beginning of April 2019, the European Parliament approved the EU’s unified regulation on copyright and related rights. Since then, Member States have been amending their anti-trust legislation in order to guarantee publishers’ rights in the cyberspace. Arguably, France has become the standard-bearer of new copyright laws’ tighter enforcement in the EU by taking on Google. Now, Paris’s anti-trust judges have taken a further step by fining Google and threatening to do it again.
Background: How did Google get there?
Usually, European are less than regardful towards US tech companies, especially Amazon, Facebook, and Google — and even more so lately. For instance, the UK announced its intention to look into Google for not deleting untruthful product reviews and scam financial ads. Meanwhile, the European Union is targeting Google’s and Amazon’s abuses of their dominant positions in advertising and retail, respectively. Most recently, France has fined Google for €500mln due to its refuse to compromise with local news outlets over digital copyright.
Online copyright in the EU
This story actually begun in Brussels more than two years ago, in April 2019. Then, the European Parliament and of the Council were discussing new rules “on copyright and related rights” in the EU. Even though this may not ring any bell, many who live in the EU will remember that period. In fact, televisions, newspapers and social media regurgitated a massive societal debate around Directive № 790 and its innovations.
In short, the point of contention was extending “the rights of reproduction and of communication to the public” to the internet. This means that newspapers and agencies deserve “a fair compensation under national law” each time someone links to their content. Obviously, there was also much more in the bill — including the easing of copyright rules for cultural heritage institutions. However, many online started worry this could have been the end of the free internet. So much so that Wikipedia shut down its European versions on the day the European Parliament voted on the directive.
Eventually, the bill passed; but it was not applicable yet. Essentially due to the EU’s multi-layer structure of government and policymaking, its organs can only rule directly on some issues. And in these cases, they create directly applicable, European laws that go under the name of regulations. Whereas more often, the EU cannot do more than hammer out a legal framework and enshrine it in a directive. True, Member States need to ‘transpose’ (i.e., introduce) all directives into their legal systems in the shortest time possible. Nevertheless, they can do so in their own way, using the wording they please and – in effect – without rushing. For these reasons, directives often generate unequal outcomes and have differentiated impacts across countries that transpose them differently.
France’s hard-line approach and Google’s steadfast reaction
The EU gave Member Sates no more than two years to pass legislation transposing Directive № 790. According to many standards, France’s transposition of the digital copyright directive was amongst the swiftest on record. In fact, Law № 775 on neighbouring rights for press agencies and publishers entered into force in October 2019. Technically, the text added a new chapter to the French Intellectual Property Code, giving press agencies and publishers new rights. First, the law created online news services’ right to curtail the partial or total reproduction of their digital publications. Second, it established that “online service providers” need to pay news services a compensation “for the exploitation of such rights.”
In practice, taking a rather hard stance, France forced “Google to pay what has been called a ‘link tax’.” As a rejoinder, Google declared it “will not show preview content in France for a European news publication.” Consequently, Google News and Search started showing only “a headline, [… linking] to the relevant news site,” but no preview. However, according to expert analysts, Google was not intentioned to start a standoff. In fact, publishers could decide to make their content “available to be found in Google Search or Google News.” But in order to do so, they would need to pre-emptively renounce any compensation for Google’s use of their articles. Hence, Google aimed at an agreement similar to those it had previously reached “with publishers in other EU Member States”. After all, the news market in countries such as Germany and Spain operated under analogues legal constraints.
A monopoly in court: French publishers react
However, this approach did not work as Google expected in France. On the contrary, it backfired majestically. Already in November 2019, a number of French news organisations, unions and business coalition filed an anti-trust suit against Google. The bases for their action are articles 420-1 and 420-2 of the Commerce Code — which instituted anti-trust enforcement in France. That is, first, the prohibition of all actions aimed at “preventing, restricting or distorting competition in a market”. And, second, the sanctioning of any abuse of “a dominant position in the internal market or a substantial part thereof.”
According to the plaintiffs, Google – like Facebook and other social networks – “refuse the implementation in good faith of the press’s neighbouring rights.” Moreover, the Alliance de la presse d’information générale, the Syndicat des éditeurs de la presse magazine and the Fédération nationale de la presse d’information spécialisée accused Google of abusing their own economic dependence basically blackmailing them to forego neighbouring-right remunerations under Law № 775. Therefore, they requested the Competition Authority to force Google to engage in negotiations on the remuneration of their content’s re-use.
Eventually, the Authority noted that it was not necessary to decide on the merits to grant temporary, interim measures. In fact, the existence of at least some reason to suspect that Google has an unfair market power is undisputable. Foremost, controlling about 90% of the French digital-news market in 2019, Google holds a dominant position vis-à-vis producers and consumers. Moreover, sturdy hurdles to entry exist in this market; thus, preventing the emergence of real competitors to Google’s apparent monopoly. Therefore, the Authorityconcluded that Google’s market position manifests the ‘extraordinary’ element that underpinned the EU’s case against Microsoft. On these grounds, the Authority mandated Google to engage in good-faith negotiations with French publishers and press agency.
Fining Google and what will follow
Ever since the Authority’s order to participate in negotiations, Google has basically done nothing. In the meantime, it had mandated Google to display snippets and previews during the negotiation period. In its Decision № 21-D-17, the Authority determined that Google engageed in “a deliberate, elaborate and systematic strategy for non-compliance”. The Authority remarked the voluntarity of this strategy multiple times, highlithing its coherence with Google’s past positions.
[T]he lack of awareness of the Decision, far from being causal or unintentional, seems to be part of a continuation of the opposition to the very principle of neighbouring rights, expressed by Google during the discussion of the Directive […].
For these reasons, the Authority fined Google for €500mln and threatened even higher fees in case of continued non-compliance. In fact, the decision affirms that given the applicable legal ceiling, penalties on Google’s revenues can reach €16bln in France.
Looking forward, one should mention that appeal against the decision is possible. Thus, Google may try its luck and attempt to get the sanction cancelled. However, it looks highly unlikely that the company may decide so. Especially given that in the last weeks before the Authority’s decision, it attempted a last-minute negotiation. According to some experts, this action alone is an implicit admission of Google’s past inaction — which the fine punishes.
Therefore, it finally seems that after Australia, a European country may finally rein in big tech successfully. Sure, Google could resist the Authority’s ultimatum and refuse to cooperate, but this is unlikely. More probably, this will be the start of Big Tech’s reckoning with traditional business its activities menace. Moreover, the French media landscape is much less fragmented than the Australian one, where agreeing with NewsCorp alone was enough. Thus, this time the negotiations will be much tougher, leading Google to start paying news services a truly fair compensation.
That the twenty-year military (and every other) intervention of the West led by the United States in Afghanistan has experienced an inglorious end is quite clear. No matter how (although well instructed) special reporters from Kabul try to convince everybody that what is happening (already happened), and that is that the Taliban took control over the whole country, was ‘not the imaginable’, however the masters of (dis)information might even try to present the obvious defeat to the public even as a victory, the facts cannot be changed.
And the facts are these. Following the attacks on New York’s ‘twins’ (World Trade Center skyscrapers) in September 2001, the United States embarked on a ‘crusade’ against global terrorism, primarily against Al Quaida and its leader Bin Laden. Taking a leading role, meaning the United Sates are the one who commands, while all the other just obey. Because it was America which literally created Al Qaida with the task of creating for the Soviet troops that held Afghanistan under occupation ‘another Vietnam’ (having in mind its own defeat in South Vietnam), it was in a way logical to strike first of all Afghanistan (and the organization which targeted those who created it). It also could, if not justified by international law, be understood as a defensive reaction from a state under attack. But, sending troops to Afghanistan was another story. This meant the occupation of that country (the Soviets, albeit painful, understood and organized their withdrawal from Afghanistan years ago) and entering in the process so favored by US strategists, the process of nation building, in other words imposing a model of Western neoliberal democracy to a country where there were no conditions for it. But such ‘little things’ do not bother Washington. The main thing is to establish a government of occupier-friendly people and hold multi-party elections. It will prove, however, that this is not enough .
In the occupation of Afghanistan, the Americans were obediently followed by the Atlantic Pact, an organization that has already – though no one in the West will dare to admit it – turn from a defense alliance limited to Europe into a iron fist of American politics in the whole world. Rather than reach for a model of Afghanistan (in that time and in that region an advanced country) from the time of King Mohammed Zahir Shah, when – for example – education of girls and the active role of women in society was something perfectly normal – they started ‘from the beginning’, as if nothing had existed before. They did restore above mentioned values from the royal period, which is persistently insisted upon as something sensational and new, they sent instructors who – and again on the American model – formed and trained the police, army and special forces, delivered a huge amount of military equipment and arms, they formed – on paper at least – the construction of a democratic Afghanistan, adequate (note: only in theory) to every democratic country of the West. But all this was functional, or – better to say – created the illusion of functioning only under the protection of foreign troops.
None of strategists and politicians who in collusion ‘created’ new Afghanistan, did even think about Afghanistan as a country with its own history and its traditions, and certainly no one tried to apply a formula known in international relations from not so distant past, namely that every country has the right to develop in accordance with its specific conditions. Instead, to Afghanistan a model of internal organization that is completely strange to that was imposed . In addition, it was imposed by the occupiers by military coercion. And as the key goal of the occupation was not nation building (it was a side task, ‘just to show’), what was stated as the primary goal at the time when, twenty (20!) years ago, the intervention began, and that was the destruction of the Taliban and Al Quaida has been pushed into the background, especially after Osama bin Laden was assassinated in a film-like operation, which President Obama and his associates followed on screens like a video game.
Interventionists concentrated on gaining control, though never complete, over the land which is located at the position very interesting, to sy the least, to those strategists preoccupied by the project of American hegemony of the world (no, this is not a conspiracy theory, it is a reality for which there is too much concrete evidence, from almost 800 military bases scattered on all meridians and parallels, through the ‘installation’ of ‘its’ people in key positions in the former socialist states, to overt or barely covert destabilization or overthrow of regimes Washington considers as unsuitble from the position of preserving and defending the interests of the US.
So the Taliban remained present, although at first defeated and forced to the sidelines. Over time however, they began to strengthen again, but as Americans were no longer overly interested, their growth was not suppressed at the root. In parallel, the process of spreading corruption and crime took place, which is in this particular case of special interest (but also dangerous), because Afghanistan has become the main exporter, illegal of course, of opium, ie poppy, which is used for drug production. America was officially pushing the government (which was as much its own, as Afghan) to put an end to it, which proved impossible. First, without poppy farming, half of Afghanistan would have starved and – second – private companies involved in the entire Afghan operation were often involved in drug smuggling at their own level , because it was – what elese – a lucrative business. Drilling ‘a la Marines ’ and modern combat techniques will prove insufficient to create domestic forces capable and willing (this ‘willing’ is especially important!) to take control of the country at the time of the departure of the Americans and NATO allies.
And when Donald Trump last year hastily announced the withdrawal of US forces, and his successor also hastily approached the realization of that promise, there was no one in NATO (which is now, in the words of its Secretary-General ‘deeply disturbed’) who would dare tell the Americans that they all are leaving without finishing the job. Instead, as soon as the ‘boss’ rised from the table, they all hastily follow his example. Declaring confidently (led by President Biden) that it was ‘not inevitable’ for the Taliban to take control of Afghanistan and, in particular, that any comparison to the US fleeing from South Vietnam was totally unfounded. Now, no one can doubt the Taliban rule over the entire country and the burning of documents at the US embassy and helicopters hastily evacuating Americans from Kabul to the airport where military transporters are waiting for them must, simply must remind anyone who still remembers those events of the American departure with the ‘twisted tail’ from Saigon.
So this is the end, an infamous end indeed. But it is, in the long run, much more than that. It is the destruction to dust and ashes of all illusions that the democratic West, led by the United States, brings, as it was once said, a better tomorrow. This is the collapse of moral values, which are so often mentioned, and which – clashing with the interests and calculations of capital – seem to be totally irrelevant. In the past two decades, the Americans and allies have managed to tie tens of thousands of Afghans to their, basically, occupation apparatus, from logistics and translators, domestic staff in embassies, through members at all levels of the administration to members of the military and police forces. These people, along with their families, are ‘marked’. In the eyes of the Taliban, they are helpers of the occupiers, enemies, they are collaborators. What will happen to them, what will happen to girls and young women, those still in school and those educated, what will happen to emancipated women, hardly anyone cares about that. Except, of course, that everyone is ‘very worried’. Desperate Afghans apply to enter countries whose armed forces they have helped, but these applications are slowly being resolved, or rejected. Only some countries in the EU suspended (for now!) deportation to Afghanistan of refugees from that country; most did not, with the explanation that the acceptance of already arrived Afghan refugees could might be interpreted as a signal to potential newcomers to set out for Europe. And they will set out, no doubt about that. And it will not be the migrants, as Europe is naming them hypocritically, but war refugees brought into the situation to seek refuge somewhere ‘undder the sun’(like millions of his compatriots who have already done) just because of the policy waged by America and its European allies.
US President Biden sent additional troops to Afghanistan, but only to protect the evacuation of Americans and he threatened swift and violent response to the Taliban, but again only if they endanger US interests. And that move, better than anything else, exposes all the misery of today’s West. Winners in the Second World War knew (but not forgetting their interests) to create the basis for the existence of Germany and Japan whose ambitions would not endanger world peace. But since those days, capitalism has ‘progressed’. In those days capital used policy, today it rules the policy. And a policy whose sole goal is to pursue the interest of capital, or those owing it, disregarding the interests of others, or grossly violating them, a policy aimed solely at making a profit, no matter how, can lead to only one result: a military, political and moral breakdown such as me we are witnessing in Afghanistan.
If this author, a journalist with half a century of experience in monitoring international relations, could have predicted a little over a month ago in an article entitled ‘Already seen’ what would happen, it is simply not possible that no one and nowhere in Western capitals could not do the same. Of course they could, if they were not blinded by the illusion of their own omnipotence and the arrogance on which stupidity grows, which inevitably leads to collapse, to an inglorious end. And only one question remains: will at least that and at least now be understood by some of those who decide, by those responsible for the tragedy of the people of Afghanistan ?
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