Senators want to make anti-piracy technology on the web mandatory

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Enlarge / Senator Thom Tillis (RN.C.) is the co-sponsor of the SMART Copyright Act.

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Two senators have introduced a bill that would give the US Copyright Office the power to mandate the adoption of anti-piracy technology on the Internet. Websites that fail to comply would face damages of up to $150,000 on the first violation. The bill, known as the SMART Copyright Act, is co-sponsored by Sen. Thom Tillis (RN.C.) and Vermont Sen. Patrick Leahy, one of the oldest Democrats in the Senate.

“In the fight against copyright theft, there is currently no consensus standard technical measure and this needs to be addressed,” Tillis said in a press release last month.

But opponents dispute this. A letter signed by a coalition of public interest and tech industry lobby groups says “this proposal would also put an agency without engineering or other relevant expertise in charge of designing digital products.” Additionally, they said the legislation “risks corrupting and capturing specific companies and vendors offering their own products.”

It’s unclear when — or even if — this legislation will come to a vote. Traditionally, a bill like this would be reviewed by a Senate committee before going to the Senate. But as Congress has become more dysfunctional, it has become increasingly common for bills like this to be joined at the last minute to gargantuan “must-pass” spending bills.

For example, in December 2020, Tillis introduced legislation to make it a crime to operate a pirate streaming site. Just two weeks later, the proposal was attached to the massive 5,600-page, $900 billion COVID spending bill. As a result, Tillis’ bill became law before most lawmakers – let alone the general public – had a chance to read it.

We don’t know if something similar will happen with the SMART Copyright Act. But we thought it was worth digging deeper into the legislation now, just in case.

A new approach to filtering

Congress last conducted a complete overhaul of copyright law with the Digital Millennium Copyright Act of 1998. This law included the notice-and-take-down system familiar to many Internet users. Under this system, online service providers are shielded from liability for copyright infringement if they promptly remove potentially infringing material when advised to do so by copyright owners.

This “safe harbor” rule had many caveats, including a requirement that a service provider “adapt and not interfere” with “standard technical measures”. Lawmakers imagined that copyright owners and online service providers would work together to develop an industry standard for watermarking copyrighted content. Next, they hoped that service providers could automatically flag and remove watermarked content if the owner did not allow it.

But nearly a quarter of a century later, that hasn’t happened. The courts have not identified any “standard technical measures” that online service providers must take into account. Instead, most major platforms have developed proprietary filtering technologies tailored to their needs. YouTube, for example, has a system called ContentID that uses fingerprinting technology to automatically detect infringing video and audio content. YouTube said in 2018 that it had spent $100 million to create this system.

But many small websites do not use any particular anti-piracy technology. And some rights holders say that’s a problem. Thus, the new law would give the Library of Congress – and its subsidiary, the US Copyright Office – the power to unilaterally choose anti-piracy “technical measures” that online platforms must adopt.

Specifically, the law would establish a new three-year cycle for adopting new anti-piracy technologies. Every three years, the public could submit petitions proposing new mandates for anti-piracy technology. The Copyright Office would seek public comment on each proposal and then decide which would become legally binding. Online platforms would then have at least a year to implement the new measures. Then a year or two later, the whole process started all over again.

If you’re a copyright enthusiast, this “three-year” rule-making process may sound familiar. This is the same process used by another section of the DMCA, the one that criminalizes the distribution of “circumvention devices” for digital rights management systems. This part of the law gave the Copyright Office the power to grant exceptions on a case-by-case basis. Some copyright reformers have criticized this process, arguing that it is too haphazard and that the Copyright Office is too biased towards copyright owners. But Leahy and Tillis took it as a model in their new legislation.

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