US Senators introduce anti-piracy legislation
March 22, 2022
By Colin Mann
US Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) have introduced the SMART Copyright Act of 2022, bipartisan legislation that would hold tech accountable by developing effective, widely-available measures to combat copyright theft.
“In the fight to combat copyright theft, there is currently no consensus-based standard technical measures and that needs to be addressed,” said Tillis. “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.”
“Nearly twenty-five years ago, we enacted the Digital Millennium Copyright Act, a landmark update to the copyright laws for the Internet age,” added Leahy. “Since then, the Internet has significantly changed, and with it so has the world of copyright. I’m excited to work, alongside Senator Tillis, with filmmakers, musicians, authors, and artists of all stripes, enlisting the help of online platforms, to address online copyright theft that robs these artists of the fruits of their creativity and hard work. 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. I look forward to working with all realms of the copyright community to address the problem of copyright theft.”
Online service providers struck a deal with Congress twenty years ago—they wouldn’t have to pay for copyright theft facilitated by their systems if they worked with copyright owners to create effective standardised technical measures (STMs) to identify and protect against distribution of stolen content. In enacting this grand bargain, Congress clearly envisioned this safe harbor immunity would act as an incentive for platforms and rights holders to collaborate on developing effective measures to combat copyright theft, lower transaction costs, accelerate information sharing, and create a healthy Internet for everyone.
Yet rather than incentivising collaboration, the law actually inhibits it because service providers cannot risk losing their valuable safe harbors if an STM is created. In addition, the current statute provides only one path to establish that a technological measure is a consensus-based STM that must be available to all. As a result, no STMs have been identified since the law took effect. The issue isn’t whether technical measures to combat rampant copyright infringement exist—plenty do—but rather how to encourage service providers to adopt technical measures to combat stealing and facilitate sharing of critical copyright data.
The Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022 takes a measured approach to addressing these barriers in two ways. It creates flexibility so that more existing measures could be eligible for consensus created STMs and it addresses the incentive issue by authorising the Librarian of Congress to designate through an open, public rulemaking process technical measures identified by stakeholders that certain service providers must accommodate and not interfere with. Instead of ‘bet the company’ loss of safe harbors, violations involving designated technical measures (DTMs) risk only actual or statutory damages, from which innocent violators can be exempt.