Myths v Facts: SMART Copyright Act

The Tillis-Leahy SMART Copyright Act of 2022
Myths v Facts

Myth: The legislation is necessary.
Fact: The U.S. Copyright Office specifically concluded that legislation is not needed and that “the development of STMs depends upon voluntary collaboration and consultation within and across industries” after five years of studying Section 512 of the Digital Millennium Copyright Act (DMCA).

The DMCA already works, preserving the careful balance between promoting creativity while incentivizing innovation, consumer rights and free expression. The legislation has successfully powered a digital renaissance of economic growth, new jobs and booming online creativity – with online copyright infringement on the decline in the U.S. and worldwide.

Myth: Designated technical measures (DTMs) will reflect common sense industry standards.
Fact: “Standard technical measures” are defined by the DMCA as measures that have “a broad consensus” and are developed in “an open, fair and voluntary multi-industry process.” On the other hand, “designated technical measures” are an entirely new concept created by Senators Tillis and Leahy.

DTMs will not reflect consensus or voluntary participation, which is how true standard setting works. DTMs give the Copyright Office arbitrary, random and baseless power to determine how the internet is designed and functions – potentially on the basis of an application from just one individual. Furthermore, there are no safeguards to limit the Copyright Office’s power. This isn’t about technical measures – it’s establishing technical mandates.

Myth: The bill will hold Big Tech accountable.
Fact: Technical mandates will entrench existing technology platforms while holding back smaller platforms, nonprofits, startups and new entrants.  Large user-generated content platforms like Google and Facebook already have sophisticated technical systems set up. The average seed-stage startup raises $1.2 million to cover all its expenses for 2 years. Off-the-shelf matching-and-filtering tools cost upwards of $120,000 per year, and YouTube spent $100 million to build and implement ContentID. Startups and nonprofits do not have the resources to license or build tools that they will need to comply with this legislation. It will be riskier, more complicated and more expensive for small platforms to succeed – with many forced to close entirely.

Myth: It’s easy to use technology to stop copyright infringement.
Fact: Determining whether something is infringing copyright is often far too complicated for an algorithm. Subjective human judgment will always be necessary, and there is a reason why courts and juries are often asked to make these decisions. There are no one-size-fits-all technical measures, and the technology already results in a large percentage of false positives. Increased automation of the notice-and-takedown procedures has already led to at least 30% of erroneous or abusive takedowns. More filters on more platforms will drive this even higher. Common failures of filtering technology include:

  • Unable to account for fair use
  • Unable to account for when someone has a license for the work
  • Unable to account for multiple uses of nonexclusive licenses
  • Unable to know if the account is owned by the rightsholder
  • Unable to distinguish between two different performances of the same public domain work, as in classical music performances
  • Unable to account for non-infringing similarities between works
  • Unable to account for what is a copyrightable element – there have been many examples of  uncopyrightable sounds like white noise, a purring cat or birdsong falsely flagged as infringing

Myth: Actual or statutory damages can be easily sustained by service providers.
Fact: Small platforms, nonprofits and startups will be hit hardest by technical mandates. Under the bill, rightsholders can sue them in federal court for failure to accommodate or implement a technical mandate, with actual or statutory damages up to $800,000. The constant churn of new, unchecked technical mandates every 3 years creates exponential new risks for smaller digital services. Faced with a fear of legal costs and high civil penalties, this legislation will kneecap startups and nonprofits.

Myth: The Copyright Office can do this work.
Fact: The Copyright Office is completely unequipped with the resources or technical expertise to handle yet another triennial rulemaking. This is not a matter of copyright law, but highly technical details that a Chief Technologist cannot handle alone.  Evaluating the cybersecurity risks, the implementation challenges and the potential impacts on the privacy of all Americans go far beyond the jurisdiction and expertise of the Copyright Office. Furthermore, the Copyright Office is already underwater with tasks beyond its true mission to promote creativity and free expression.

Myth: The legislation will help prevent costly litigation.
Fact: S. 3880 is a boon to copyright lawyers and will lead to even more copyright lawsuits. By creating new civil liabilities and allowing anyone to file a lawsuit in federal court for failing to implement a government-imposed technical mandate, the bill opens digital service providers (platforms, websites, devices and more) to unprecedented damages and legal costs from rightsholders’ infringement claims and lawsuits.

Myth: The tech industry and public interest groups signed off on this.
Fact: The technology industry, libraries, public interest groups and new creators all voiced strong concerns to the Copyright Office in its current inquiry on technical mandates, as well as to the bill’s drafters throughout the process. Since the bill has been introduced, these same groups and additional allies have continued to emphasize that technical mandates and filters will stifle creativity, innovation, and the flow of information.

Myth: STMS are necessary.
Fact: There are many, diverse technical measures available to support platforms’ compliance with Section 512 of the DMCA. Some platforms build their own while others license proprietary tools. There is no one-size-fits-all approach. Instead, S. 3880 is a solution in search of a problem.

Myth: Service providers risk losing their safe harbor if an STM is created.
Fact: This is abjectly false. A true STM is based on a voluntary, consensus-based, open approach that service providers participate in and agree to. They are a part of the process from the very beginning and would keep their safe harbors if an STM results from the process.