SMART Copyright Act Aims to Standardize Anti-Piracy Measures
The new bill would authorize the Librarian of Congress to designate technologies for the protection of copyrighted works online.
Last Friday, Sens. Thom Tillis (R-NC) and Patrick Leahy (D-VT) introduced a new bill designed to encourage the development and adoption of “effective, widely-available measures” to fight copyright piracy.
Dubbed the SMART Copyright Act of 2022, the bipartisan legislation would authorize the Librarian of Congress to conduct public proceedings in order to identify and designate already widely used technical measures to combat piracy; create incentives for online service providers to adopt them; and assure “reasonable costs and implementation,” according to a press release announcing the bill.
“In the fight to combat copyright piracy, there is currently no consensus-based standard technical measures and that needs to be addressed,” said Sen. Tillis in a statement. “I am proud to introduce this bipartisan legislation that will provide widely available piracy-fighting measures and create a trusted and workable internet for our creative communities.”
Leahy added, “The technology exists to protect against this theft; we just need online platforms to use the technology. I’m working hard to make sure our artists get paid, and we can enjoy legal access to their wonderful creations.”
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The SMART Act is intended as a fix to address what creators and rights holders see as shortcomings in Section 512 of 1998’s Digital Millennium Copyright Act (DMCA), which offers “safe harbor” from liability for copyright infringement to online services for the actions of their users. Originally, a provision in the bill was designed to encourage online service providers to work with copyright owners to create standardized technical measures (STMs) protecting against piracy. In exchange for their cooperation, service providers would be provided with safe harbor immunity — essentially shielding them from monetary liability for copyright infringement instigated by their users.
But because digital platforms would have been forced to utilize whatever standardized technologies arose under a deal with copyright owners — and risked losing their safe harbor protections if they refused to comply — they had little incentive to address the issue. As a result, no standard has been hashed out in the nearly 25 years since the DMCA’s passage.
Many copyright-protection technologies have been developed over the past two decades, however, although none involved the process laid out in the DMCA. Several of these technologies are now ubiquitous, including automated content recognition, digital rights management and “fingerprinting” technologies like Google’s Content ID. Under the proposed bill, the Librarian of Congress — rather than service providers or copyright owners — will have the power to designate which of these widely-used technologies might become standard, although only after holding “at least” one public hearing allowing stakeholders to weigh in.
The Librarian of Congress must also consult with a chief technology officer (to be appointed under the bill) as well as the director of the National Institute of Standards and Technology, the assistant secretary of commerce for communications and information, the attorney general and “any relevant cybersecurity agency” before designating a technical measure. As well, the bill provides for the hiring of a chief economist to advise on issues related to economic policy and copyright.
No later than one year after the SMART Act’s enactment and every three years thereafter, the Librarian of Congress will begin accepting petitions from copyright owners, service providers and other stakeholders proposing the designation of a technical measure or the “rescission or revision” of a technical measure that was previously designated.
Ninety days from the date the Librarian designates a technical measure, service providers who are subject to it will be able to appeal the decision to the U.S. Court of Appeals for the D.C. Circuit. Under the bill, the deadline to implement any designated technical measure cannot be earlier than one year after the decision is published.
Rights holders hope the SMART Act can overcome some of the hurdles the DMCA presents to prevent online copyright infringement. Most importantly, the bill would facilitate the adoption of standardized technical measures that are already widely used by digital platforms. Under the bill, platforms that refused to utilize the designated technologies — thereby violating the law — could be hit with injunctions and/or actual or statutory damages by copyright owners (with exceptions for “innocent violations”) for their failure to comply, but unlike under the DMCA, they would not risk losing their safe harbor protections.
In a statement in support of the legislation, RIAA chairman and CEO Mitch Glazier said that the SMART Act “will incentivize the development and adoption of effective tools to address online piracy while giving platforms clarity. This thoughtful proposal builds off nearly a quarter century of real-world experience under the DMCA and promises a big step toward balancing the interests of creators and tech companies in today’s integrated commercial marketplace. Congress intended that creators and platforms work together to protect copyright and consumers and this proposal achieves that goal.”
Also coming out in support was National Music Publishers’ Association president and CEO David Israelite, who wrote, “The DMCA for years has left songwriters and music publishers with few avenues to protect their work online. We applaud Senators Leahy and Tillis for their leadership to strengthen technical measures to hold giant tech platforms more accountable. This is a great first step towards fighting online piracy which continues to be a major threat to the livelihood of our creative community.”
On the other side of the spectrum, Garrett Levin, president and CEO of the Digital Media Association (DiMA) — the organization which represents major digital platforms including Spotify, Google, Apple and Amazon — made an argument for self-regulation.
“Government-issued technology mandates are rarely successful, and often counterproductive, in effectively addressing the pace of technological change and accounting for the diversity of services,” Levin wrote. “DiMA believes flexible, nimble, voluntary, and market-driven solutions, including on voluntary technical measures, are best suited to further our shared goal of promoting creative expression and preventing piracy.”
Joining DiMA in its objection to the SMART Act is Re:Create, an organization that advocates against efforts to “increase restrictions and enforcement of U.S. copyright law,” according to its official website. In a press release, Re:Create executive director Joshua Lamel argued that “technical mandates handed down by government lawyers without technical expertise or oversight will result in content filtering – stifling creativity, innovation, and the flow of information” while also expressing concerns over how such mandates would “expose Americans to security and privacy threats, especially given the Copyright Office’s history of ignoring serious cybersecurity concerns in its support of past proposals.”