About S. 3880, the SMART Copyright Act
Senator Thom Tillis and Senator Patrick Leahy introduced S. 3880 to impose content filters on the internet and innovation. The Digital Millennium Copyright Act (DMCA) was established to create a careful balance between creators, innovation, consumers and free expression. In the 20 years since passage, the legislation has powered a digital renaissance of economic growth, new jobs and booming online creativity. The DMCA also protects rightsholders, with online copyright infringement on the decline worldwide.
S. 3880 is the latest attempt to filter the internet, giving the government the unilateral power to impose Technical Mandates on how Americans’ devices, platforms, websites and social media work. “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”. Nevertheless, rightsholders have lobbied Congress to skip consensus and force service providers of all kinds to filter and block creative content on their services.
The bill’s key provisions:
Inject uncertainty into a foundational law that supports creativity and innovation
Section 512 of the DMCA has supported consumers, creators, rightsholders and service providers for over two decades. The Tillis-Leahy bill broadens the definition of Standard Technical Measures in Section 512 (i) of the DMCA to help rightsholders undermine the current safe harbors and gives the U.S. Copyright Office the authority to mandate “Designated Technical Measures” that services must accommodate and implement in a new Section 514. In doing so, the bill upends the DMCA and replaces it with a new framework that benefits the largest content companies and anti-piracy vendors, while risking innovation and creativity online.
Expand the government’s authority to mandate the design and functioning of internet services
Similar to the broken Section 1201 triennial rulemaking on “anti-circumvention” exemptions, the bill directs the U.S. Copyright Office to hold a triennial rulemaking for Technical Mandates. The Copyright Office will review petitions from rightsholders, platforms, anti-piracy vendors and others that propose new Technical Mandates. Any member of the public can propose a Technical Mandate. After consultation with NIST, Department of Commerce, Department of Justice and relevant cybersecurity agencies, the Copyright Office will then designate which Technical Mandates should be included, revised or removed. By creating this new rulemaking, the bill gives the Office control over the design and functioning of the online services we use every day. This process will create a constant churn of new unchecked Technical Mandates and create uncertainty for providers of all types and sizes. Services could be forced to filter, monitor, and block large amounts of content on their services and networks or allow third party vendors to do the same.
Open service providers to dual liability from infringement claims and lawsuits from rightsholders
By both changing the definition of “Standard Technical Measures” in Section 512 and adding additional obligations and civil liability for service providers, the bill exponentially expands risk for services that host user generated content. In addition to existing protections for rightsholders, under the new Section 514, rightsholders can sue service providers in federal court for failing to accommodate or implement the “Designated Technical Measures” declared by the U.S. Copyright Office. Platforms would face actual or statutory damages up to $800,000. The new increased risk and cost of litigation will divert resources away from innovation and stifle the growth of new services.
Why You Should Oppose S. 3880
- Hurts Competition & Consumer Choice: Technical Mandates will pick winners and losers, entrenching existing companies and holding back smaller platforms and startups
- Chills Free Speech Online: Filtering will hurt free expression online and limit creativity and access to information.
- Expands Government Control: Under this proposal, the government would have the power to decide how the products/services work that you use everyday.
- Creates Security Risks: Filter mandates imposed without technical expertise risk exposing Americans, the economy and our national security to major cybersecurity and privacy threats.
- Opens the Door to Mass Surveillance: The bill opens up the possibility to force inspection of everything Americans use the internet for, from email and text messages to cloud based storage of personal files.