from the this-is-not-how-the-internet-should-work dept
I guess ten years is long enough that Senator Pat Leahy thought everyone had forgotten about the SOPA/PIPA disaster that he was a leading reason for. Senator Leahy is on his way out of the Senate, and apparently has at least one last gift in store for Hollywood lobbyists (which includes his daughter) who make sure that Leahy gets a role in every Batman film. The latest from Leahy (and Senator Tom Tillis, who seems to clearly want to take over Leahy’s role as Hollywood’s favorite senator), is to introduce a bill to effectively require filters on every website.
The bill, going by the Orwellian name “Strengthening Measures to Advance Rights Technologies Copyright Act of 2022” (shortened to the SMART Copyright Act of 2022) is extraordinarily problematic. But it’s also been expected for a while. Just last month, the Copyright Office held a giant roundtable on this topic — after being ordered to do so by the same tag team of Tillis and Leahy. As we pointed out both in our submission to the Copyright Office and further at the roundtable, “technical measures” (i.e., filters) have serious 1st Amendment implications that need serious consideration.
But, rather than do anything to respond to these concerns (and lots of other concerns raised by participants at the roundtable), Leahy and Tillis rushed out this bill, which was clearly ready long before the roundtable even existed. Leahy and Tillis and the supporters of this bill like to claim that it’s just “clarifying” and improving on Section 512(i) of the DMCA, which mentions “standard technical measures,” but make no mistake, this is yet another attempt by Hollywood to control an internet they’ve always hated.
Everything about this bill is garbage. It starts out by basically mimicking the much maligned DMCA 1201 triennial review process. As you may recall, DMCA 1201 is the part about “anticircumvention” of technological protection measures, but everyone realized that making any kind of circumvention of DRM automatically copyright infringing would lead to all sorts of nonsense. But, rather than fix the law so it didn’t create nonsense, Congress came up with this completely ridiculous circus, where every three years people like documentary filmmakers, security researchers, and people who just want to repair their own devices, have to come groveling to the Copyright Office and Librarian of Congress, begging for a grant of dispensation, so they can actually do things that everyone recognizes should be perfectly legal.
In this new bill, this nuisance model is repeated, but flipped around. Basically, every three years, the copyright industry would ask the (very, very welcoming) Copyright Office (currently run by a former top copyright industry lobbyist) to designate certain “technical measures” as blessed from on high. Then “covered” service providers would effectively be required to use these “technical measures” or face stringent statutory damages.
It’s not difficult to see where this is going. For quite some time now, the copyright industry has demanded that every upload first be filtered for infringement, against a database that it expects internet companies to develop themselves (far be it from the copyright industry to develop its own database of copyright-protected content, because that might be used to show how frequently the industry doesn’t actually pay its artists). Over in the EU, they got this through via what’s now known as Article 17 (originally Article 13). We’re already seeing how the implementation of those upload filters is creating a huge mess in the EU, and things will likely be much much worse in the US.
Of course, this bill is sneaky, because it doesn’t directly call for filters, so Leahy and Tillis can shrug their shoulders and say that the bill says nothing at all about filters. Indeed, in the ridiculous “myths vs. facts” document they released with the bill, they give away the game.
MYTH: This is a filtering mandate that will chill free speech and harm users.
FACT: The SMART Copyright Act creates an open process for all stakeholders, including the public, to identify copyright-related technological measures that should be broadly available to all. Some measures, like the International Press Telecommunications Council (IPTC) photo metadata standard, or a Creative Commons license, can help users know whether and how they can use content while also respecting creators’ rights. Other technological measures, including “filtering” technologies, are used to stop infringing content at scale, or make content available for licensing. The bill ensures that any designation of existing measures requires input from all stakeholders and assessment of public interest considerations. This process is also an opportunity for users to provide technological solutions to these concerns. The Copyright Office’s particular expertise in the area of copyright and its exceptions—like fair use—can assist with ensuring the right balance is struck between curbing infringement that undermines authors’ constitutional rights and promoting online availability of materials.
Got that? The bill doesn’t mandate filters. It just lets Hollywood demand filters be mandated from the Copyright Office (lead by one of their top lobbyists), but the public (i.e., you suckers) can send in letters complaining about this, which will likely be ignored because Hollywood’s lobbyists know how to play this game better than you do.
Also, seriously, the authors of this bill are particularly nefarious, putting something like Creative Commons licenses as an example before filters. Is anyone from Creative Commons demanding this? Fuck no. They didn’t weigh in at the roundtable, which you’d think they would if this were so important.
Make no mistake, this bill is a way to try to force the internet to use filters. Because that’s what the copyright industries have always wanted, and they figure that this is the sneaky way to get their wish in the US. Never mind the fact that every single research effort to look at the impact of these things shows that filters massively overblock content and lead to significantly less speech online. Never mind the fact that filters cannot determine “fair use.” Never mind the fact that filters are expensive and would only be affordable by the largest internet companies.
This is a garbage bill designed, once again, to turn the internet into Hollywood’s vision of the internet: a place to promote and charge people for their content, rather than what it actually is, an open platform for communication. When your communications are “filtered” then it’s no longer a communications platform. It’s just another form of TV, which is exactly what Hollywood wants.
I guess, then, we’ll all just spend our time watching Pat Leahy’s cameos in the latest Batman flick, because what else will we have to do?
Filed Under: copyright, copyright office, filters, mandated filters, patrick leahy, technical measures, thom tillis, triennial review