Standard Technical Measures Require Technology and Consensus That Do Not Exist

The U.S. Copyright Office’s Notice of Inquiry on the development and use of standard technical measures (“STMs”) and Section 512 generated strong opposition from creators, consumers, libraries and startups. The resounding opposition follows the Copyright Office’s separate March 2022 request for input on the use of technical measures to address copyright infringement, which also triggered a massive response in opposition, including thousands of comments from the general public. 

Library Copyright Alliance:So what is driving this interest in ‘fixing’ section 512(i)? Clearly, it is the desire of the entertainment industry to impose a filtering mandate similar to that of Article 17 of the European Union’s Directive on Copyright in the Digital Single Market. The Copyright Office should not abet the entertainment industry in such an adventure that inevitably would undermine free expression in the digital environment…No government agency has the technical competence to evaluate whether a proposed STM would even be effective at identifying or protecting works. Nor could it evaluate the impact of the technical measure on cybersecurity.”

Reddit: “Filtering technologies…cannot make nuanced judgments about fair use or transformative works. As a result, standardized measures are likely to remove non-infringing content and suffer from false positives. Worse, these over-removals would strike at the heart of the transformative user-generated content that makes Reddit communities unique. That is a severe, unnecessary, and unacceptable cost to the free expression of our users and the communities they build.

Niskanen Center: “Any discussion of copyright holders must also recognize the workers in the “creator economy” . . . They are often frustrated by automated measures to police copyright infringement online and victimized by false positives. In a worst-case scenario, burdens placed on OSPs to police copyright infringement could create barriers to entry for them that would deny them access to the market in the first place. Aside from economic concerns, regulations mandating the adoption of technologies that police copyright infringement online that do not come with significant safeguards – including penalties for their abuse – have significant implications for copyright law’s relationship to free speech, both as a general principle and as it relates to the First Amendment.”

Engine: “Changes to the Section 512 framework, including definitions or treatment around standard technical measures, could create new uncertainties and ambiguities in the law and throw up new barriers to entry for emerging service providers. Among other things, changes could exacerbate existing imbalance in copyright law and force service providers that encounter user-generated content— including startups and platforms that rarely experience alleged infringement—to screen every user post for potential infringement.

Creative Commons: “Fair use is not a mere afterthought to the Copyright Act; it is a necessary part of the justification for its existence. Copyright holders cannot be permitted to unilaterally suppress the critical, educational, and other socially beneficial speech that relies on lawful access to copyrighted works. Any attempt to address infringement that does not treat this speech as essential to preserve does not align with the text or intent of this law and is unsuited for formal adoption.”

Organization for Transformative Works: “Obstacles to accommodating STMs, as a practical matter, currently overwhelm the very concept of STMs. Expense, server burden, person-hour burdens, and technical infeasibility are just a few. Even assuming those were not prohibitive, the particular challenges of evaluating fair use make accommodating any hypothetical STM insuperable for certain kinds of OSPs. For example, OTW is focused on hosting fair-use derivative works.”

Re:Create: “STMs have not developed for a very good reason: they are not actually needed. The proprietary nature of most technology necessitates very tailored and technology specific solutions…Most major platforms have already instituted voluntary technical measures that go beyond the requirements of DMCA Section 512.” 

Internet Archive: “Existing technologies which purport to address certain aspects of the definition of standard technical measures…are burdensome, costly, ineffective, and, if used to impose blanket takedowns, likely to impinge on free expression…Common problems include claiming ownership of works in the public domain, claiming ownership of works clearly not owned by those sending the notice, and claiming speech clearly protected by the fair use doctrine as infringement (such as a review or lesson plan). In the circumstances, it should be no surprise that a broad consensus has not formed around the adoption of such technology…”

Computer and Communications Industry Association: “The vast differences in content industries and digital services have made it not only challenging to develop standardized technical measures, but undesirable…Mandating the adoption of industry-wide standards could also have a negative impact on startup OSPs who may not have the necessary resources to adopt standards that require licensing a specific technology—especially where the standards enable a single provider to demand potentially supracompetitive prices.”

Electronic Frontier Foundation: “It is unlikely that a rulemaking would garner a different result than what nearly two decades of private market technical development has yielded. Traditionally, regulation addresses a market failure that exists in the absence of regulation. However, no such failure exists in the area of STMs where strong motivations have long been present to safeguard copyrighted works.”

Wikimedia Foundation: “We are concerned that instituting a formal process to mandate which technical measures platforms must use or accommodate will lead to censorship of legal content. It could also force the Foundation to make changes to the existing community-led copyright enforcement process that will disempower the communities that create and maintain the Wikimedia projects and make copyright enforcement less efficient across all projects.”