SMART Act Opposition Draws from the Tired Anti-Copyright Playbook
On March 18, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) introduced the SMART (Strengthening Measures to Advance Rights Technologies) Copyright Act of 2022. The bill makes amendments to existing section 512(i) and adds a new section—section 514—to the Copyright Act, which establishes a triennial public rulemaking process through which the Librarian of Congress will publicly designate certain technical measures (or designated technical measures, known as DTMs). A summary of the bill and the support it has garnered from the copyright community can be found in our earlier blog.
In response to the SMART Copyright Act, the usual group of anti-copyright organizations turned to the same playbook they’ve been using for more than a decade to oppose any efforts to help creators combat infringement or enforce their rights. The responses are as predictable as they are divorced from facts, and most of them rely on the rhetorical tactic that one cannot prove a negative. Outlandish predictions and scare tactics are substituted for good-faith debate, and the following is just a sample of their favorite plays:
Play 1: Insist that piracy is not a problem.
Most would admit that online piracy is an enduring problem, but there are some who absurdly try to claim that piracy does not and has never posed a real threat to creators. For example, the Library Copyright Alliance submitted comments in response to the Copyright Office’s Notice of Inquiry on Technical Measures asserting that “online infringement no longer poses an existential threat to the content industries, to the extent it ever did.” It’s a brash statement which is entirely contradicted by data-driven evidence revealing that piracy continues to inflict substantial harm on copyright owners and creators.
Recent reports show that despite the ever-increasing availability of legal content, online piracy remains rampant. While some forms of online infringement, such as peer-to-peer torrent downloading, may be decreasing, this is mainly because piracy has migrated to illegal streaming, which now dominates the piracy landscape and inflicts massive harm on copyright owners and the creative industries that create hundreds of thousands of jobs and contribute billions to the U.S. economy.
A 2019 study on the impact of digital piracy found that digital video piracy causes lost domestic revenues of at least $29.2 billion and as much as $71.0 billion annually, and that it results in losses to the U.S. economy of between 230,000 and 560,000 jobs and between $47.5 billion and $115.3 billion in reduced gross domestic product (GDP) each year. These are staggering numbers, and yet they don’t capture the hard-to-measure impact on independent creators who often don’t have the resources to monitor for or report infringement. It’s baffling that some can continue to claim with a straight face that piracy isn’t a problem, and yet that’s exactly what organizations like the Library Copyright Alliance are doing.
Play 2: Demand perfection in order to avoid doing anything at all.
Through mostly anecdotal “evidence,” copyright opponents attempt to poke holes in every new approach by predicting various, often extreme, hypothetical consequences as a way to claim that the new solution will never work. In their minds, unless a proposal is perfect, there’s no point in even considering it. It’s a rather hypocritical position when you consider that these same groups are big supporters of various laws and technologies that are far from perfect. Take the fair use exception in the Copyright Act, for example. Courts routinely get fair use cases wrong. Does that mean we should throw out the fair use doctrine because it’s not perfect? Of course not.
Specifically, technical measures currently employed by platforms like YouTube and Facebook do not work perfectly, but they implement these measures because it is in their interest to protect the rights of at least some creators. Provisions like the SMART Copyright Act strive to improve upon these measures, inviting all stakeholders to contribute to that end. But instead of sincere participation, these groups trot out a litany of hypothetical negative results, insist that we let the perfect be the enemy of the good, and pretend that they have given the matter serious consideration.
Play 3: Say we want compromise but never come to the table.
Tactics like the above are designed to sink proposals rather than negotiate in good faith. It is especially frustrating when we consider the time and effort that copyright owners have dedicated over the years to listening to the concerns of service providers and user communities and working towards compromises that ensure copyright reforms do not have unintended consequences. But the rhetoric employed by the critics intentionally obfuscates the truth about the legislative process.
For example, the SMART Copyright Act language presently contained in Section 514 was part of Section 512 in the initial drafts of the bill. When platforms, including Google and Amazon, complained that this would add a new requirement that could jeopardize their safe harbor protection, and requested that the rulemaking be altered so that failure to comply would not impact the safe harbor, their requests were accommodated. Yet, even after that compromise, the service provider community remains stubbornly opposed, moving the chess pieces and complaining that the bill does not address every possible concern—real or imagined—they choose to raise.
We should remember that the SMART Copyright Act was introduced this year because for nearly a quarter century platforms and other stakeholders have refused to collaborate on standard technical measures, as Congress envisioned when the DMCA was drafted. This includes their unwillingness to participate meaningfully in the Copyright Office’s current technical measures consultations. As we noted in testimony before the Senate Subcommittee on Intellectual Property, organizations representing online service providers often talk about their willingness to work with stakeholders and Congress, yet when copyright owners reach out to them to discuss possible approaches, they are always unresponsive.
Play 4: Repeat the slogan that Copyright enforcement is censorship.
The organization Re:Create released a statement just after the SMART Act’s introduction that claims the bill would “censor free expression online.” Predictably, Re:Create fails to explain how or why this is likely to happen. Going even further, the Electronic Frontier Foundation (EFF) claims in a recent blog that the SMART Act will result in the same censorship of the internet that occurs in China and Iran. Pretty scary stuff, huh? After all no wants to be subject to a regime as repressive as those in China or Iran. The message being sent here is clear: Don’t worry about the details just hurry up and tell your congressman you want them to oppose the SMART Act or anything like it!
It would be nice if Re:Create or EFF acknowledged that the SMART Copyright Act incorporates a number of safeguards that address potential abuses, including careful consideration by the Librarian of Congress of “the impact a technical measure may have on criticism, comment, news reporting, teaching, scholarship, research, increasing information sharing, or other relevant public interest considerations.” But that’s not in the playbook.
Play 5: Label efforts to improve copyright enforcement unconstitutional.
Unsatisfied by merely raising the specter of censorship, those who oppose copyright enforcement improvements typically invoke the Constitution in an attempt to derail legislative efforts. For example, in its statement on the SMART Copyright Act, Public Knowledge (PK) claims that the bill creates an “unconstitutional delegation of authority to a non-expert agency within the legislative branch.”
This is not the first time that Public Knowledge and EFF have claimed that some aspect of copyright enforcement is unconstitutional. For example, they make similar claims about section 1201, the anti-circumvention provisions in the Digital Millennium Copyright Act (DMCA). But their constitutional challenges to section 1201 have been soundly rejected in court. In 2021, the U.S. District Court for the District of Columbia issued an opinion making clear that it is in the government’s interest to protect copyrighted works online and that section 1201 is “unrelated to the suppression of free expression.”
It is highly unlikely that a constitutional challenge to the triennial rulemaking process established by the SMART Act would fare any better, but the statements and blogs written by the SMART Copyright Act’s critics repeat the words censorship and unconstitutional and omit discussion of the bill’s following requirements:
- An open process for all stakeholders, including the public, to provide input and identify technological measures.
- Assessment of the impact a technical measure may have on competition among service providers, and the impact it may have on competition among copyright owners.
- Ample opportunity to affected service providers to challenge proposed technical measures or petition for the rescission or revision of a technical measure designation.
- The opportunity to appeal any decisions on technical measures to the DC circuit.
- Limits on service provider liability for good faith efforts to comply with the SMART Acts provisions.
Play 6: Insist that efforts to reform copyright law are driven by (and will only benefit) Hollywood and other large copyright owners.
For years, copyright detractors have resorted to the familiar refrain that copyright enforcement measures are something that only serves “Hollywood.” Recent articles with titles like “Senators Leahy & Tillis To Team Up To Suggest Destroying The Internet For Hollywood’s Sake” and “Wouldn’t It Be Great if Internet Services Had To License Technologies Selected by Hollywood?” are just a couple of examples of how these critics try to mislead the public and frame the issue as something it’s not.
These type of clickbait headlines suggest that movie industry companies wield tremendous power over Congress and can get them to do their bidding. What these articles choose not to mention is the massive amounts of money tech companies have dedicated in recent years to lobby Congress and fund the astroturf groups they control (like EFF, PK, and Re:Create). If you need proof, look no further than the reports about the big tech platforms spending $55 million on lobbying in 2021, by far the most of any industry—notably more than defense and pharmaceuticals.
Posing copyright reform as something only “Hollywood” wants and something that will only benefit large companies or corporate copyright owners is a false-flag tactic used again and again by copyright skeptics, no matter the issue. As we’ve said in the past, ad hominem attacks are favored by those who cannot or will not articulate a sound critique on the merits of a proposal. It is an especially absurd form of misdirection in the context of technical measures to protect against piracy, given that the larger copyright industry players already benefit from measures developed through voluntary agreements. It is the smaller players who stand to benefit the most from the SMART Copyright Act.
What articles like the ones mentioned above conveniently omit is that the SMART Copyright Act and other efforts to develop technical measures are based on an effort to provide access to these tools to individual creators and small copyright owners, who are not involved in and do not always benefit from voluntary measures negotiations. The truth is that individual creators have been at the forefront of advocacy for effective and available technical measures and provisions like the establishment of the Copyright Claims Board.
Play 7: Remind everyone that better copyright enforcement will break the internet—just like SOPA!
Perhaps the most outlandish argument that copyright skeptics make in opposition to updates to the law that would improve copyright enforcement is that any change will somehow “break the internet.” What exactly is meant by breaking the internet is never truly explained and instead is left up to the reader’s imagination.
Hyperbolic claims about the demise of the internet have been made in response to just about every copyright legislation introduced, including 2020’s Protecting Lawful Streaming Act (PLSA), which imposes accountability for large scale, commercial streaming piracy operations. But the PLSA has now been law for a year and a half, and the internet seems to be carrying on just fine.
The narrative peaked ten years ago when many of the same copyright detractors told people that the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) would “break the internet.” Since then, SOPA/PIPA fearmongering has had more sequels than the Rocky franchise. Organizations like the EFF never miss an opportunity to pat themselves on the back for their role in mobilizing people to oppose SOPA/PIPA and threatening that such-and-such bill is the second coming of SOPA/PIPA. So, it comes as no surprise that the EFF now claims the SMART Act is “almost as bad” as SOPA/PIPA.
Play 8: Tell everyone the Copyright Office is incapable of understanding technology.
Just about every statement made in opposition to changes to copyright enforcement includes a derogatory statement about the Copyright Office’s inability to administer or analyze any issue relating to technology. In the case of the SMART Copyright Act, copyright critics accuse the Office of not being able to administer technical measure rulemakings because it lacks technological expertise. The echo chamber of comments includes Re:Create’s warnings about “government lawyers without technical expertise” and “the Copyright Office’s history of ignoring serious cybersecurity concerns in its support of past proposals.” Public Knowledge claims the Copyright Office “has very little technical expertise and a known history of prioritizing corporate interests over the interests of internet users and individual creators.”
As to the lack of technical expertise, no one expects lawyers at the Copyright Office to understand the underlying technological workings of a measure at the same level as the experts who develop and employ them. Those who administer the section 1201 rulemaking aren’t computer engineers, and they rely on petitioners, copyright owners, and service providers to educate and inform them of the details of anti-circumvention measures and digital rights management technologies. They consider exemptions as part of an open process and make determinations based on whether the balance intended by the DMCA will be upheld.
The proposed designated technical rulemaking set forth in the SMART Copyright Act will not be much different. The Copyright Office will apply its expertise in the law—including on things like fair use and the First Amendment—to the proposed technical measures and make determinations as part of an open process where all stakeholders will have the opportunity to be heard. Furthermore, the SMART Copyright Act recognizes that consultation with other expert agencies may be needed and expressly requires the Librarian of Congress to consult with, report and comment on the views of the Director of the National Institute of Standards and Technology (NIST), the Assistant Secretary of Commerce for Communications and Information, the Attorney General, and “any relevant cybersecurity agency.” The Act also calls for the appointment of a Chief Technology Advisor at the Copyright Office “who shall advise the Register on technology issues related to copyright law, including by evaluating and providing advice on the factors in section 514.”
The immediate and vehement criticism of the SMART Copyright Act—repeating a pro forma list of grievances invoked to oppose every copyright enforcement proposal—is telling. First, it shows that rather than carefully consider each proposal on its own merits and think about how it might address recognized problems, these organizations flatly refuse to work cooperatively with copyright owners or offer any solutions of their own. Second, it shows that they realize that it best for them to resort to buzzwords and scare tactics because they have worked in the past and it allows them to avoid engaging in an honest and open discussion of how best to resolve the issues. Finally, it reveals the true colors of companies that will fight any change to the status quo tooth and nail to preserve business models that have allowed them to thrive while turning a blind eye to infringement.
It’s past time these groups are called out for what they’re doing as they go back to the same threadbare playbook in opposition of the SMART Copyright Act. Faux concern about internet users’ rights, censorship, and “breaking the internet” are nothing more than a means to an end, and they will continue to be employed to challenge any updates to the DMCA. Don’t believe me? Wait until the next copyright bill is proposed and have your checklist ready.
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