March 22, 2022
U.S. 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 widely available measures to combat copyright theft of Hollywood movies, music, podcasts, books and video games.
The proposed law would be an enhancement to the existing Digital Millennium Copyright Act, the 25-year-old landmark bill protecting copyright laws in the internet age, by holding tech companies responsible for third-party content theft.
That’s because after the DMCA was approved, online service providers struck a deal with Congress so they wouldn’t have to pay for copyright theft facilitated by their systems if they worked with copyright owners to create effective standardized technical measures (STM) to identify and protect against distribution of stolen content.
In enacting this grand bargain, Congress 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 all parties.
That hasn’t happened, according to Tillis.
“In the fight to combat copyright theft, there is currently no consensus-based standard technical measures and that needs to be addressed,” the lawmaker said in a statement. “This bipartisan legislation … will provide widely available piracy-fighting measures and create a trusted and workable internet for our creative communities.”
Indeed, rather than incentivizing collaboration, the current law actually inhibits it because service providers cannot risk losing their valuable safe harbors if a 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, according to the lawmakers, 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 internet has significantly changed, and with it so has the world of copyright,” said Leahy. “The technology exists to protect against this theft; we just need online platforms to use the technology.”
The SMART Copyright Act of 2022 aims to create flexibility so that more existing measures could be eligible for STMs, and it addresses the incentive issue by authorizing 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.
“I’m working hard to make sure our artists get paid, and we can enjoy legal access to their wonderful creations,” Leahy said. “I look forward to working with all realms of the copyright community to address the problem of copyright theft.”