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Online Copyright Piracy Debate Ramps Up Over Proposed Legal Fix

March 23, 2022, 7:12 PM

Online copyright piracy has found ways around a law dating to the dawn of the internet age, and now debate is ramping up over a potential legal fix.

The Digital Millennium Copyright Act of 1998 was meant to give online service providers an incentive to create technical measures that would protect content creators. In return, the service providers would get safe harbor provisions shielding them from liability from hosting activities that infringe copyrights.

Since then, there’s been wide agreement that the incentives didn’t achieve all that they were meant to. Service providers didn’t create standard technical measures, or STMs, because doing so could result in loss of the safe harbor under the DMCA.

Piracy online is rampant, according to the Copyright Alliance, a nonprofit that represents content creators.

What has been impossible so far to agree on is how to fix the law. The debate centers on competing interests—the ability to enforce copyrights, and a free internet that doesn’t disrupt legal speech.

Sen. Patrick Leahy (D-Vt.) and Sen. Thom Tillis (R-N.C.), the leaders of the Senate Judiciary Committee’s Intellectual Property Subcommittee, recently proposed the SMART (Strengthening Measures to Advance Rights Technologies) Copyright Act of 2022, which aims to hold service providers accountable for fighting copyright theft.

“To me this is a win-win-win scenario where everybody wins. And bonus points because it’s actually going to curb piracy,” said Devlin Hartline of the Hudson Institute’s Forum for Intellectual Property.

But both supporters and critics say the legislation is unlikely to advance unless changes are made.

“We’re very concerned with the way the bill is set up,” said Meredith Rose, senior counsel at Public Knowledge, a non-profit group in Washington that advocates for an open internet. She and others question whether the Copyright Office has the technical abilities to execute the proposed actions of the bill.

“The structure of the bill doesn’t suggest a particular kind of technology. So, you know, I think a lot of folks are very afraid of what that might look like,” she said.

New Tools

The SMART Act proposes to create a new Section 514 of the Online Copyright Infringement Liability Limitation Act, with a new set of technical measures, called Designated Technical Measures or DTMs, which would be automated tools for identifying and protecting copyrighted works online.

The librarian of Congress would be responsible for designating DTMs. Failure to accommodate these technical measures would result in statutory damages for service providers, but wouldn’t threaten their safe harbor. The damages range from a minimum of $200 to $2.4 million per action of copyright holder, according to the draft law.

Tillis and Leahy said in a fact sheet that the bill would require the agency to hire a chief technology adviser and chief economist and that the office would start a public process to assess which existing technologies should be made standard for public use.

Free Speech

One of the primary concerns about the bill is how it might impact free speech if it becomes law.

The SMART Act doesn’t provide technical details about how the filters would be set or what percentage of uploaded material would be required to be a match to an underlying copyrighted work to be flagged.

“Algorithms are designed to be over inclusive—when you’re designing them you want them to catch as much as possible and the problem is you can’t have a computer tell what is fair use and what is not,” said Rose. She anticipates that while the protective filters the Copyright Office would set up under this act would fix the problem for some, the collateral damage would be the free speech of possibly millions of internet users.

Joshua S. Lamel, executive director of a coalition of creators called Re:Create, said he didn’t think the Copyright Office could find the balance between taking down copyright infringing content and taking down content that is covered by fair use. “We as a society shouldn’t be violating privacy to that level and creating so much of a Big Brother-like situation in the name of policing for copyright infringement,” he said.

Copyrights should be protected, but the SMART Copyright Act oversteps its bounds and isn’t the right solution, Rose and Lamel said.

Rose described it as a tendency to “nerd harder,” saying “it’s like if you nerd harder and someone hits it with a stick enough, then clearly we can solve this problem. It’s a complicated problem and I don’t think that’s right.”

To contact the reporter on this story: Riddhi Setty at rsetty@bloombergindustry.com

To contact the editors responsible for this story: Renee Schoof at rschoof@bloombergindustry.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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