Online Copyright Piracy Debate Ramps Up Over Proposed Legal Fix; Bloomberg Law, March 23, 2022

Riddhi Setty, Bloomberg Law; Online Copyright Piracy Debate Ramps Up Over Proposed Legal Fix

"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... 

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."