A SMART New Approach to Combatting Piracy
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, S. 3880. 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). The SMART Act represents a bold, new approach that aims to ensure that tools to effectively combat piracy are implemented consistently and in a way that addresses the concerns of service providers, copyright owners, and internet users.
How Did We Get Here?
In passing section 512 of the Digital Millennium Copyright Act (DMCA) in 1998, Congress intended to encourage copyright owners and service providers to work together to combat existing and future forms of online copyright infringement. The Senate Judiciary Committee’s 1998 report on the DMCA stated that “technology is likely to be the solution to many of the issues facing copyright owners and service providers in the digital age,” and the Committee “strongly urge[d] all of the affected parties expeditiously to commence voluntary, interindustry discussions to agree upon and implement the best technological solutions available to achieve these goals.” This rationale led Congress to include section 512(i) in the DMCA, specifically conditioning eligibility for safe harbor protection on whether a service provider “accommodates and does not interfere with standard technical measures” (STMs).
512(i) defines STMs as “technical measures that are used by copyright owners to identify or protect copyrighted works and
- have been developed pursuant to a broad consensus of copyright owners and service providers;
- are available to any person on reasonable and nondiscriminatory terms; and
- do not impose substantial costs on service providers or substantial burdens on their systems or networks.”
Under section 512(i), if a service provider fails to accommodate or interferes with STMs, it cannot avail itself of safe harbor protection under the DMCA.
In theory, this provision should be one of the most important in the DMCA. But it isn’t, and that’s because almost a quarter century after the DMCA was enacted into law no STMs have been recognize under section 512(i). In effect, it’s as if the STM language in section 512(i) doesn’t exist. The reason for this is because of the phrase “broad consensus of copyright owners and service providers.” This provision has been interpreted as requiring all potentially affected parties to come to the table and reach agreements on STMs. Unfortunately, since the inception of the DMCA nearly 25 years ago, no STMs that protect copyrighted works from piracy have been adopted because many service providers and platforms simply refuse to meaningfully engage in STM discussions.
For far too many service providers and platforms, the DMCA is nothing more than a tool to avoid liability, rather a tool for combatting infringement. For them, the fact that there are no STMs is a good thing. If there are no STMs they cannot accidentally lose their safe harbor by not complying with 512(i). In fact, that is why the new section 514 in the SMART Act doesn’t impact safe harbor as all (more on that later).
Clearly, Congress did not include section 512(i) in the DMCA to see it go unused for a quarter century. Senator Tillis and Leahy were both insightful enough to recognize that, which is why we are now considering alternatives, like the SMART Act.
What Does the SMART Act Do?
Most of the legislating in the SMART Act comes in the form of a new section 514 created by the bill. Section 512(i) itself remains largely unchanged, which should make the service providers and platforms happy. One change to section 512(i) would expand the definition of STM to allow for the development of technical measures that are specific to particular industries, types of works, and types of service providers. Section 512(i) was never intended to require consensus from all stakeholders across every industry to meet the statutory requirements of a STM. There must be significant flexibility in agreeing to STMs across different types and sizes of copyright owners, service providers, users, and services. As we heard repeatedly from stakeholders of all types during the recent STM plenary discussions held by the Copyright Office, there does not need to be, and should not be, a one-size-fits-all approach. Recognizing this, the bill allows technical measures developed for a particular industry or type of work to be considered for STMs if identified or developed by a broad consensus of relevant copyright owners and service providers. This is a good improvement and is consistent with what stakeholders have been saying publicly.
As noted above, the biggest change comes in the addition of new section 514. The most significant distinction between section 514 and section 512(i) is that a violation of section 514 would not result in a loss of a safe harbor (as is the case when a service provider violates 512(i)). Instead of risking the loss of safe harbors, service providers that do not comply can be liable for actual or statutory damages. For first offenders (whether small or large in size), these damages (which can be as low as $200) can amount to no more than a slap on the wrist. Second and third offense are understandably more severe so that no service provider can ignore the provisions and treat the consequences as the mere cost of doing business.
What section 514 does is establish a triennial public rulemaking process that enables the Librarian of Congress to publicly designate technical measures (DTMs). No privately owned technical measures may be designated unless the owner of the proprietary measure petitions for it first. Some may say that this creates a technology mandate, but that is not the case. The bill does not expressly require service providers to implement specific technologies. It does require them to use technologies to protect against piracy, but ultimately it will be up to the provider to determine what that is and how to implement it so long as it satisfies the Librarian’s rulemaking. Remember, we are talking about technology companies being asked to use technology. There is nothing unusual or extraordinary about what the SMART Act intends to do here.
The rulemaking process established by the bill provides for a public comment process that includes a public hearing so that all stakeholders will get an opportunity to share their views. It also lists numerous factors that must be considered by the Librarian when making a determination—including such things as the impact on public interests, whether certain types of service providers (libraries or educational institutions) should be excluded, the costs and benefits of designating a measure, and impact on privacy and competition. At the end of the process, the Librarian must explain the designated technical measures, including descriptions of the service providers to whom they apply. To ensure that the Librarian has the technological wherewithal to conduct the rulemaking, the Act provides that the Librarian must consult with the Register of Copyrights and other government experts, including the National Institute of Standards and Technology (NIST) and the National Telecommunications and Information Administration (NTIA). In addition, the bill would create Chief Technology Advisor and Chief Economist Positions and provides appropriations for these positions.
At the end of the day, the SMART Act is about much-needed accountability and cooperation. When stakeholders negotiated the terms of the DMCA a quarter century ago, they understood that everyone had an important role to play in an effort to prevent the internet from becoming a haven for infringement. Senators Tillis and Leahy recognized that and responded with the SMART Act as a bold, new approach that attempts to assuage the concerns of all groups.
Here’s What Different People and Groups Are Saying About the SMART Act
While there have been a few naysayers, most of the views on the bill have been extremely supportive. A sampling of these views is provided below.
Senator Thom Tillis (R-NC)
Ranking Member of the Senate Intellectual Property Subcommittee
In the fight to combat copyright theft, there is currently no consensus-based standard technical measures and that needs to be addressed. I am proud to introduce this bipartisan legislation that will provide widely available piracy-fighting measures and create a trusted and workable internet for our creative communities. Nearly twenty-five years ago we enacted the Digital Millennium Copyright Act, a landmark update to the copyright laws for the internet age. Since then, the internet has significantly changed, and with it so has the world of copyright.Read Senator Thom Tillis’ full statement.
Senator Patrick Leahy (D-VT)
Chairman of the Senate Intellectual Property Subcomm.
I’m excited to work, alongside Senator Tillis, with filmmakers, musicians, authors, and artists of all stripes, enlisting the help of online platforms, to address online copyright theft that robs these artists of the fruits of their creativity and hard work. The technology exists to protect against this theft; we just need online platforms to use the technology. I’m working hard to make sure our artists get paid, and we can enjoy legal access to their wonderful creations. I look forward to working with all realms of the copyright community to address the problem of copyright theft.Read Senator Patrick Leahy’s full statement.
Artist Rights Alliance
Stacey Dansky (Executive Director)
This bi-partisan legislation is a huge step forward towards these goals — making it easier for artists to control their music online and holding tech companies accountable for unlicensed work on their platforms…Broad adoption and implementation of technical measures that identify and protect music would help artists and songwriters enormously. It would let them focus on creating new music and lessen the need to monitor for infringements of their existing work. It would also likely increase the number of artists, musicians and songwriters that can make a living from their music. And it would send a message that digital platforms are partners in a healthy music economy, not zero-sum game competitors focused solely on their own bottom lines.Read the Artist Rights Alliance’s full statement.
Association of American Publishers
Maria Pallante (President and CEO)
For far too long, tech platforms have failed to live up to their end of the bargain in the Digital Millennium Copyright Act (DMCA), and instead have consistently evaded their commitment and responsibility to work together with copyright owners to use standard technical measures to identify and protect copyrighted works from infringement online. As a result, nearly 25 years after the DMCA’s enactment, not a single technical measure has been ruled to be a “standard technical measure” under the law, despite the widespread presence of effective technological solutions that tech platforms could and should implement. We thank Ranking Member Tillis and Chairman Leahy for their leadership in recognizing this serious problem in the DMCA and working to address it by creating a triennial rulemaking process at the U.S. Copyright Office to designate technical measures that platforms must implement.Read the Association of American Publishers’ full statement.
The Authors Guild
Mary Rasenberger (CEO)
The SMART Copyright Act of 2022 empowers the Copyright Office to designate standard technical measures (STMs) through a public triennial rulemaking process and requires covered platforms to adopt or implement the STM to identify, remove or filter out piracy from their services. The STMs would be tailored to the needs of particular industries such as publishing, film and television, and music, and failure to implement them would result in liabilities for non-compliance, including actual and statutory damages rather than loss of the safe harbors.
The SMART Copyright Act of 2022 has our support as an important step towards encouraging all internet platforms to adopt STMs and to make them available for creators, not just big industry. It is a simple, targeted, efficient solution that has the potential to dramatically reduce piracy on internet platforms. The Authors Guild is thrilled to see this new push by Senators Tillis and Leahy to close the loopholes in copyright law that allow malicious pirates to thrive and harm hardworking creators.Read the Authors Guild’s full statement.
Keith Kupferschmid (CEO)
It is abundantly clear that the existing provisions relating to Standard Technical MeasuresRead the Copyright Alliance’s full statement.
(STMs) in section 512 of the Copyright Act are not working, as evidenced by the fact that there
have been no STMs formally recognized under this section since the provision was enacted more
than 23 years ago. The approach taken by the bill—granting the Copyright Office authority to
establish a triennial rulemaking process that would require platforms to implement
technical measures to protect against piracy on their sites and impose significant consequences
on those platforms that fail to comply—is a sensible approach.
Ruth Vitale (CEO)
Today, Senators Thom Tillis (R, NC) and Patrick Leahy (D, VT) announced the SMART Copyright Act. If passed, the bill would make important clarifying revisions to enable more widespread adoption and use of standard technical measures (STMs) to combat piracy. It would also authorize the Librarian of Congress to designate certain technical measures identified by stakeholders as STMs, with a corresponding requirement that covered service providers undertake commercially reasonable efforts to accommodate and not interfere with those measures.Read CreativeFuture’s full statement.
Independent Film & Television Alliance
Jean Prewitt (President and CEO)
Digital piracy continues to cause devastating harm to those who work in the creative industries at large in the U.S and around the world. Since the Digital Millennium Copyright Act was enacted 25 years ago, technology advances have made piracy easier – but technology also increasingly provides new and more targeted ways to fight that piracy. The SMART Copyright Act will expand the incentives for stakeholders to work together to harness those technologies. We commend Senators Tillis and Leahy for identifying the potential for new voluntary solutions and for proposing a framework for decision-making that is transparent, open, and respectful of stakeholders’ different concerns.Read the Independent Film & Television Alliance’s full statement.
Motion Picture Association
Patrick Kilcur (Executive Vice President for U.S. Government Affairs)
We are thankful to Ranking Member Tillis and Chairman Leahy for their continued work to protect the rights of the creative community from digital theft. In enacting the DMCA, Congress envisioned that creators and online service providers would work together on technical solutions to protect copyrighted works. Despite the passage of 20 years, the DMCA has fallen woefully short of Congress’ intent in yielding recognized Standard Technical Measures. We look forward to working with Senators Tillis and Leahy on this legislation and making progress on effective solutions to protect and advance the success of the American creative community.Read Motion Picture Association’s full statement.
National Music Publishers Association
David Israelite (President and CEO)
The DMCA for years has left songwriters and music publishers with few avenues to protect their work online. We applaud Senators Tillis and Leahy for their leadership to strengthen technical measures to hold giant tech platforms more accountable. This is a great first step towards fighting online piracy which continues to be a major threat to the livelihood of our creative community.Read the National Music Publishers Association’s full statement.
Recording Industry Assocation of America
Mitch Glazier (Chairman and CEO)
By encouraging cooperation between platforms and rightsholders, the SMART Copyright Act will incentivize the development and adoption of effective tools to address online piracy while giving platforms clarity. This thoughtful proposal builds off nearly a quarter century of real-world experience under the DMCA and promises a big step toward balancing the interests of creators and tech companies in today’s integrated commercial marketplace. Congress intended that creators and platforms work together to protect copyright and consumers and this proposal achieves that goal.Read the Recording Industry Association of America’s full statement.
A safe and secure internet benefits us all. Protecting copyright and internet freedom are both critically important and complementary. A truly free internet is one where people respect the rights of others and can engage in legitimate activities safely—and where those who do not are held accountable under law by their peers. The SMART Act is a good step in that direction.
For more information on the SMART Copyright Act of 2022, and related initiatives, visit the Copyright Alliance’s DMCA Legislative Reform webpage.