We’ve already detailed why the latest bill from Senators Thom Tillis and Pat Leahy, the SMART Copyright Act, is dangerous to the future of the internet. You can read that earlier article, but the short summary is that it would deputize the Copyright Office every three years to arbitrarily bless certain “technological measures” that websites, that host third-party content, would need to use. The not so hidden agenda here, pushed by Hollywood basically since the internet came on their radar, is that the Copyright Office will say that any site hosting user uploaded content will need to purchase an upload filter to scan each upload to make sure it doesn’t include any of Hollywood’s content.
That upload filters routinely block perfectly legal speech is not the concern of Hollywood — or, apparently, of Tillis or Leahy (they just want to keep Hollywood happy).
Anyway, we already noted how Creative Commons responded angrily to Tillis’s office implying that Creative Commons supported the bill when it absolutely does not. But lots of other organizations are making it known that this bill would be a disaster for the open internet. A wide range of civil society groups, trade organizations, companies, and academics recently sent a letter explaining the many problems of the bill:
First, the proposed amendments to § 512(i) break the careful balance between innovation and copyright protection struck by the DMCA. For example, they significantly lessen service provider and user clarity and certainty in present and future technical measures that are employed to maintain a safe harbor for service and innovation. Rather than build confidence in the use of technical measures or incentivize further collaborative solutions, these changes would inject uncertainty into a law that has proven foundational and has supported creators, rightsholders, consumers, and online service providers of all kinds. The Copyright Office has recognized that in the decades since the passage of the DMCA, no “standard technical measures” (STMs) have emerged. Far from demonstrating an underlying flaw in the DMCA as the legislation appears to assume, this lack of standard technical measures is largely because the constructive uses of the Internet and the technologies and media involved have become so diverse. Identifying anything as “standard” under the new proposal, and avoiding technical conflicts between measures so identified, will become more, not less, difficult.
Second, the new § 514 would result in endless triennial litigation cycles through the creation of an entirely separate—and potentially unconstitutional—category of government-mandated “designated technical measures.” Section 514 gives the Copyright Office1 authority far beyond its competence and expertise to identify and mandate such measures, transforming it into an Internet regulator with responsibility for overseeing an elaborate, multi-agency bureaucratic process that would recur every three years. To avoid costly litigation and potentially extensive statutory damages, service providers would be effectively compelled to devote significant resources into implementing such measures, only to find themselves continuously exposed to renewed obligations each time new measures are designated. Such direct and heavy-handed governmental involvement in the creation of technical mandates for private industry conflicts with traditional U.S. standards policy.
This proposal would also put an agency with no engineering or other relevant expertise in charge of how digital products are designed, irrespective of whether copyright infringement is actually occurring. Additionally, the Copyright Office does not have the expertise to evaluate complex technical issues such as cybersecurity and competition.3 The legislation would put the government in the position of picking winners and losers in the market for content recognition technologies, which risks corruption and capture from specific businesses and vendors pitching their own products.4 The potentially overlapping and burdensome technical requirements designated through this process would ultimately harm users — risking their privacy and security, undermining the stability of services they rely on, and limiting choice and access to information.
Finally, digital services are already constantly fine-tuning their efforts to combat infringement online in response to the evolving tactics of commercial infringers, and they have done so with notable success.5 The legislation thus is not only unnecessary, but would freeze these efforts and stifle the ability of online services to get ahead of emerging challenges — locking collaboration into a triennial regulatory cycle and discouraging the private sector from making critical investments outside of these cycles. Within months of the designation of a technical measure, sophisticated infringers would find workarounds, while service providers would be on an endless cycle of “designated technical measure” rulemakings. Measures designated in one cycle could be rescinded in the next, creating uncertainty and constant churn.
Also a separate letter was sent from a whole bunch of internet companies (not in the “big tech” category), such as Patreon, Etsy, Cloudflare, Pinterest, and Reddit, explaining just how damaging this bill would be.
Changing the DMCA could easily make our work too expensive, difficult, or risky. But the SMART Act would do just that. For example, the bill would authorize the Copyright Office to mandate copyright upload filters. It would create ambiguous legal terms, like “relevant service providers,” that we would have to wade through during drawn-out lawsuits few of us could afford. It would generate a complex maze of “standard” and “designated” technical measures that apply to different companies in different ways—we would have to figure out which ones we had to adopt and if we got it wrong we would be back in court. This is all setting aside any actual copyright infringement, because the bill would allow large rightsholders to sue us just over whether we were using the right technologies.
Finally, it is not just about our businesses. Many of us know, first-hand, how improper copyright takedowns force our user’s non-infringing posts offline. Over-reliance on technology promises to exacerbate those concerns, stripping your constituents of expressive, creative, and economic opportunities. With stakes this high, we hope you will reconsider the SMART Act and instead focus on pro-innovation proposals that can expand opportunities for us and our users.
The Internet Archive has also made it clear just how dangerous this bill would be:
This bill and its supporters do not represent the public’s interest in fair copyright policy and a robust and accessible public domain. That is a shame, because much good could be done if policymakers would put the public’s interest first. For example, the Copyright Office—which holds records of every copyright ever registered, including all those works which have passed into the public domain—could help catalogue the public domain and prevent it from being swept up by today’s already-overzealous automated filtering technologies (an idea inspired by this white paper from Paul Keller and Felix Reda). Instead, the public domain continues to be treated as acceptable collateral damage in the quest to impose ever-greater restrictions on free expression online.
This bill is extremely harmful. So far, all signs suggest that Tillis and Leahy don’t care about that at all. But the people who use the internet every day should care about it — and should care about the cavalier attitude these senators have towards the internet, all because Hollywood supports them and hates the open internet.
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