Plan for Dealing with the new European Copyright Directive


#1

We have finished our review of the new European Copyright Directive, and after holding some talks with some of our users who where kind enough to look through it with us and getting the opinion and feedback from some of our more legally inclined members (a special thanks to you all) we now feel we have a plan in place for dealing with this new directive.

Before we get into it though let us go through some quick ground work so we know where that site stands.

Article 17 (formally 13), what we know

At minimum the forum can be considered a “online content-sharing service provider”

After reviewing the new copy-right directive we can say with a fair bit of certainty that at least the forum can be classified as an “online content-sharing service provider” as defined under Article 2 section 6. This means that we would have to comply with Article 17 if we wish to continue operations in the EU. The forum alone also does not fall under any of the excepted services listed under Article 2 section 6.

Weight Gaming may be able to fall under the “online marketplaces” exception

Our current plans of opening up a marketplace for our users to be able to sell their games or assets for game development may allow us to fall under the “online marketplaces” exception as defined in Article 2 section 6. The forum would also be included under this as it would be considered an extension of the marketplace and not the main profit driver.

We are not completely sure if we will be able to fall under this exception though as section 62 under the Whereas states:

…online marketplaces the main activity of which is online retail, and not giving access to copyright-protected content.

This phrase makes us question if the exception only covers only retailers of physical products as art, music, and any type of software is copyright-protected content. At the same time the sale of games and assets can be considered retail so this is one of those fun grey areas where we have to see how each nation ends up defining this.

Conforming with Article 17 will require some way to filter content

As defined by Article 17 section 4 there are 2 major things we need to do to comply with Article 17 (we are not counting section 4c as that requires compliance with 4b). The first option, section 4a, states:

made best efforts to obtain an authorisation

which just means we need to buy a special license for the content one of our users posted on Weight Gaming. It should be obvious this is cost prohibitive as:

  1. We will more than likely not be able to afford the license.
  2. There is warning for 4a like 4b so we have to try to obtain these licenses preemptively further increasing the cost.

So if 4a is out the only one we are left with is 4b which states:

made, in accordance with high industry standards of professional diligence, best
efforts to ensure the unavailability of specific works and other subject matter for
which the rightholders have provided the service providers with the relevant and
necessary information; and in any event

This basically states that we have to prevent the posting of copyrighted content by our users or we will be liable for its posting.

So now you might be wondering why I excluded 4c. Well this is because 4c is states:

acted expeditiously, upon receiving a sufficiently substantiated notice from the
rightholders, to disable access to, or to remove from, their websites the notified
works or other subject matter, and made best efforts to prevent their future uploads
in accordance with point (b)

This means we get one warning if we can show that we are complying for 4b so it really does not provide us with any protection.

Weight Gaming could be considered a Sole Proprietorship at best or a Partnership at worst

Due to Weight Gaming’s current setup if we where to be taken to court we would be considered either a Sole Proprietorship or Partnership. This is where most of the danger comes from as it puts those who work on the site at risk of being held personally liable in the suite. This puts our livelihoods at risk and we must take this threat very seriously.

The Plan

We have 4 steps planed out to help mitigate this risk while simultaneously trying our best to not reduce access to our EU users while not inconveniencing our non-EU users. The following is the details on our current plan.

1. Form an LLC

Our first priority is to push up forming Weight Gaming into an LLC or some other Corporation. Doing so will help shield those who dedicate their time to make this site better from being personally liable in the event of a lawsuit. This will also allow Weight Gaming to stand on its own as a legal entity reducing its reliance on any one individual.

As many of you know we have had this plan for quite some time now, but the unfortunate part is this is being pushed way up in our schedule. We where hoping to be able to delay this till as late as possible to so we could focus our resources on the main site but this is now going to force us to incur these costs earlier than expected.

We dont have a strict time frame yet but we hope to have the LLC formed 2-3 months.

2. Create a compliance plan

We also will create and publish a plan detailing on how we plan on complying with Article 17. We hope to have this done in around the same time frame as the LLC.

3. Pivot more towards the marketplace

Since the online market place exception is currently our best bet we will be trying to pivot the site more towards the marketplace then we originally planned. This mainly means that we want to:

  1. Make it clear that the market place is our main site and the forum is for our community to communicate.
  2. The Patreon is for supporting the development of the marketplace and our community.
  3. Attempt to move up the timeline for the Marketplace as far as possible.

In the end we are just going to be trying our best to be classified as an online market place to fall under the online market place exception.

4. Apply back lists on a case by case basis

We will be keeping an eye on how each of the 28 member nations decide to implement this directive. As they do we will then weigh the risk of each implementation and apply selective blacklists if we feel we can not comply with the implementation specified by that specific country. The black list is still not the most optimal solution, but this case by case blacklisting will help us to limit the damage to our EU users while mitigating risk.

Please rest assured this is a last resort and will only be used if we can find no other feasible solution to comply with that specific countries implementation of the directive.

As usual if you have any questions or concerns feel free to ask/raise them and we will answer to the best of our ability. Also, for those who want to read the full directive here is the version we used from the EU parliament:

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_7717_2019_INIT&qid=1553917808068&from=EN