In an effort to modernize the 1998 Digital Millennium Copyright Act (DMCA), including the notification and takedown system to against online piracy, the SMART Copyright Act of 2022 was introduced in the US Senate in May 2022. A counterpart bill was introduced in the US House of Representatives in December.
The bills are intended to put a process in place to identify and implement Standardized Technical Measures (STMs) to detect and address online copyright infringement that are widely available and can be implemented by any service provider.
The US Copyright Office was tasked in 2022 to collect public input and make recommendations to Congress, and has now transmitted those recommendations to lawmakers.
This was the latest of a series of events and initiatives that began in 2020, when the US Copyright Office completed the first public study to evaluate the impact and effectiveness of the safe harbor provisions contained in Section 512 of title 17, United States Code – part of the DMCA.
Section 512 established a system for copyright owners and online entities to address online infringement, including limitations on liability for compliant service providers. These safe harbor provisions include the protection of ISPs from liability based on infringement activities of third parties using their systems. Service providers must comply with a ‘notice and takedown’ process. These safeguards for industry must be balanced with public interests that include free speech and fair use, and takedowns can be challenged.
In May 2020, the Copyright Office released a report that summarized its study and its recommendation stoward updating the Notice and Takedown system used to take infringing distribution out of circulation, and in September of 2020, ran a Discussion Series to present legal considerations to the public.
One of the session panels noted that a useful first step would be to get broad agreement on use-cases (such as to increase the effectiveness of notice and takedown), identify the ways to mitigate them, and let the technology community determine how. The Copyright Office can take a role in moderating and problem resolution – working with technical standards organizations.
This prompted the Copyright Office to run a Comment Period from April 25, 2022, to collect recommendations from the public. The Period closed a month later. The letter transmitted in December by the Copyright Office to Sens. Leahy and Tillis encapsulated those recommendations
Comments to the US Copyright Office included claims that the definition of STMs was ambiguous and therefore difficult to meet. A second claim was that Section 512 discouraged ISPs from cooperating wtih copyright owners to develop STMs.
Also, commenters responded that ‘the failure to develop STMs reflects the complexity of the Internet as it has evolved over the 25 years since the DMCA was enacted. There also were concerns that proprietary technical measures allow ISPs to exclude individual and small creators in favor of deals with large rights-holders that include revenue sharing.
Both hardware and software technologies evolve rapidly, and companies must continually innovate to stay ahead of threats such as piracy. Commenters said that government-imposed requirements are likely to become obsolete quickly”… “and that “mandates to use particular types of technologies would favor large entities with deep pockets and sophisticated legal teams, and harm smaller entities with limited budgets or new entrants to the market who may lack the resources to accommodate or deploy new technologies,” the letter said.
Copyright Office recommendations
The Copyright Office recommended specific changes to clauses of DMCA Section 512(i):
1) To clarify that that the terms “broad consensus” and “multi-industry” require substantial agreement but not unanimity, and only of those industries directly affected by an STM;
2) Confirm that technical measures qualify as STMs if they are designated as such by a broad consensus of copyright owners and service providers, even if they were originally developed by a narrower subset of stakeholders or emerged from proprietary processes; and
3) set forth a list of factors for weighing whether a particular measure imposes substantial costs and burdens on service providers.
Read the recommendations: Letter to Sen Patrick Leahy D-VT (Chair, Senate Subcommittee on Intellectual Property on the Judiciary) and Sen Thom Tillis R-NC, (Ranking Member), December 20, 2022, from the Register of Copyrights of the United States of America, US Copyright Office
Why it matters
The DMCA is in the process of being revised for the first time since 1998, to add a generation’s worth of societal and technological change that has been catalyzed by the Internet. It is hoped that US government policy does not mandate technological solutions to a level of detail that subjects it to becoming outdated quickly.