Strong Opposition to Tillis-Leahy S. 3880 on Technical Mandates

Groups come out in strong opposition to S. 3880, legislation that would impose government-mandated content filters on the internet and innovation, giving government bureaucrats the power to decide how Americans’ everyday digital products and services work. This new round of opposition follows the thousands of members of the public who already told the U.S. Copyright Office they oppose technical mandates and filters.  

Eric Goldman On The Power This Bill Gives To Government Bureaucrats. More generally, the SMART Copyright Act would give the Copyright Office a truly extraordinary power–the ability to force thousands of businesses to adopt, at their expense, technology they don’t want and may not need, and the mandated technologies could reshape how the Internet works. That’s an enormous amount of power to put into the hands of any government agency. It’s especially puzzling to give that enormous power to the Copyright Office given its relatively narrow focus. The Copyright Office is not expert at Internet technology, content moderation, or the inherent tradeoffs in publication processes,” wrote Eric Goldman, law professor at Santa Clara University School of Law.

Techdirt On The Bill’s Intent To Create Hollywood’s Vision Of The Internet.The bill doesn’t mandate filters. It just lets Hollywood demand filters be mandated from the Copyright Office (lead by one of their top lobbyists), but the public (i.e., you suckers) can send in letters complaining about this, which will likely be ignored because Hollywood’s lobbyists know how to play this game better than you do,” wrote Techdirt’s Mike Masnick. “This is a garbage bill designed, once again, to turn the internet into Hollywood’s vision of the internet: a place to promote and charge people for their content, rather than what it actually is, an open platform for communication.” 

Public Knowledge On The Lack Of Technical Expertise To Implement Bill Provisions. What is worse is that the details of these technical measures don’t even exist yet, and Congress has decided to give authority over these still-unknown and untested monitoring programs to the Copyright Office, which has very little technical expertise and a known history of prioritizing corporate interests over the interests of internet users and individual creators,” said Public Knowledge’s Shiva Stella. 

ReCreate On The Bill’s Threat To Our Nation’s Cybersecurity. “At a time of peak concern for our nation’s cybersecurity, Re:Create and our members also have serious concerns about how technical mandates will 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,” said ReCreate Executive Director Joshua Lamel.

EFF On Bill As “Unmitigated Disaster” Modeled On An Already Broken System. After first noting the number of reasons why the bill can’t even be fixed, Electronic Frontier Foundation Legal Director Corynne McSherry wrote in a blog: “Worse still, the Library of Congress will now be in charge of both designating technical mandates and designating when and how it’s OK to break them for fair use purposes. That is a terrifying power—and one far too great to put in the hands of a bunch of D.C. lawyers, no matter how well-meaning. It’s worth remembering that the Copyright Office didn’t grant a single meaningful exemption to Section 1201 for the first six years of that law’s operation. What innovative new services, and which potential challengers to today’s tech giants, could we lose in six years?”

Creative Commons Opposes Mandatory Filters, Objects To Mischaracterization Of Its Opposition. Creative Commons is strongly opposed to mandatory content filtering measures. And we particularly object to having our work and our name used to imply support for a measure that undermines free expression which CC seeks to protect,” wrote Creative Commons Deputy General Counsel Kat Walsh. “Their bill proposes to have the US Copyright Office mandate that all websites accepting user-uploaded material implement technologies to automatically filter that content. We’ve long believed that these kinds of mandates are overbroad, speech-limiting, and bad for both creators and reusers.” 

Authors Alliance Opposes Bill As Inconsistent With The Very Purpose Of Copyright. “Authors and creators are the parties that copyright law is designed to protect, making the proposal one that is inconsistent with the very purposes of copyright,” the Authors Alliance blog states. “Even if the Copyright Office were to develop STMs that reflect a broad consensus across a diverse group of stakeholders, this would leave out the stakeholders who do not favor the widespread implementation of STMs in the first place (like Authors Alliance).” 

Library Copyright Alliance On The Bill’s Unclear Rationale Or Intention. “The precise rationale for this legislation is unclear. The sponsors’ press release says S. 3880 is intended to hold big tech accountable by encouraging them to adopt technical measures to combat stealing and facilitate sharing of critical copyright data. However, the largest platforms already employ technical measures that have significantly reduced infringing activity on their sites. If enacted, this legislation could require smaller service providers with fewer resources, such as libraries, to adopt technical measures appropriate for large commercial platforms.”

Engine On The Bill’s Barriers To Startups. “The Strengthening Measures to Advance Rights Technologies Copyright Act of 2022 is a deeply troubling proposal that would make it much more expensive and risky for startups to host user-generated content—anything from comments and reviews, to podcasts and original artwork. While the bill is ostensibly aimed at well-resourced Internet platforms, it proposes changes to copyright law that would tee up a complex and costly compliance framework for the scores of Internet startups that encounter user-generated content, in turn, restricting opportunities for innovation, competition, and expression online,” said Engine Executive Director Kate Tummarello.