Basically Everyone Tells Senators Tillis & Leahy That The SMART Copyright Act Is An Incredibly Dumb Copyright Act

We’ve already detailed why the latest bill from Senators Thom Tillis and Pat Leahy, the SMART Copyright Act, is dangerous to the future of the internet. You can read that earlier article, but the short summary is that it would deputize the Copyright Office every three years to arbitrarily bless certain “technological measures” that websites, that host 3rd party content, would need to use. The not so hidden agenda here, pushed by Hollywood basically since the internet came on their radar, is that the Copyright Office will say that any site hosting user uploaded content will need to purchase an upload filter to scan each upload to make sure it doesn’t include any of Hollywood’s content.

That upload filters routinely block perfectly legal speech is not the concern of Hollywood — or, apparently, of Tillis or Leahy (they just want to keep Hollywood happy).

Anyway, we already noted how Creative Commons responded angrily to Tillis’ office implying that Creative Commons supported the bill when it absolutely does not. But lots of other organizations are making it known that this bill would be a disaster for the open internet. A wide range of civil society groups, trade organizations, companies, and academics recently sent a letter explaining the many problems of the bill:

First, the proposed amendments to § 512(i) break the careful balance between innovation and copyright protection struck by the DMCA. For example, they significantly lessen service provider and user clarity and certainty in present and future technical measures that are employed to maintain a safe harbor for service and innovation. Rather than build confidence in the use of technical measures or incentivize further collaborative solutions, these changes would inject uncertainty into a law that has proven foundational and has supported creators, rightsholders, consumers, and online service providers of all kinds. The Copyright Office has recognized that in the decades since the passage of the DMCA, no “standard technical measures” (STMs) have emerged. Far from demonstrating an underlying flaw in the DMCA as the legislation appears to assume, this lack of standard technical measures is largely because the constructive uses of the Internet and the technologies and media involved have become so diverse. Identifying anything as “standard” under the new proposal, and avoiding technical conflicts between measures so identified, will become more, not less, difficult.

Second, the new § 514 would result in endless triennial litigation cycles through the creation of an entirely separate—and potentially unconstitutional—category of government-mandated “designated technical measures.” Section 514 gives the Copyright Office1 authority far beyond its competence and expertise to identify and mandate such measures, transforming it into an Internet regulator with responsibility for overseeing an elaborate, multi-agency bureaucratic process that would recur every three years. To avoid costly litigation and potentially extensive statutory damages, service providers would be effectively compelled to devote significant resources into implementing such measures, only to find themselves continuously exposed to renewed obligations each time new measures are designated. Such direct and heavy-handed governmental involvement in the creation of technical mandates for private industry conflicts with traditional U.S. standards policy.

This proposal would also put an agency with no engineering or other relevant expertise in charge of how digital products are designed, irrespective of whether copyright infringement is actually occurring. Additionally, the Copyright Office does not have the expertise to evaluate complex technical issues such as cybersecurity and competition.3 The legislation would put the government in the position of picking winners and losers in the market for content recognition technologies, which risks corruption and capture from specific businesses and vendors pitching their own products.4 The potentially overlapping and burdensome technical requirements designated through this process would ultimately harm users — risking their privacy and security, undermining the stability of services they rely on, and limiting choice and access to information.

Finally, digital services are already constantly fine-tuning their efforts to combat infringement online in response to the evolving tactics of commercial infringers, and they have done so with notable success.5 The legislation thus is not only unnecessary, but would freeze these efforts and stifle the ability of online services to get ahead of emerging challenges — locking collaboration into a triennial regulatory cycle and discouraging the private sector from making critical investments outside of these cycles. Within months of the designation of a technical measure, sophisticated infringers would find workarounds, while service providers would be on an endless cycle of “designated technical measure” rulemakings. Measures designated in one cycle could be rescinded in the next, creating uncertainty and constant churn.

Also a separate letter was sent from a whole bunch of internet companies (not in the “big tech” category), such as Patreon, Etsy, Cloudflare, Pinterest, and Reddit, explaining just how damaging this bill would be.

Changing the DMCA could easily make our work too expensive, difficult, or risky. But the SMART Act would do just that. For example, the bill would authorize the Copyright Office to mandate copyright upload filters. It would create ambiguous legal terms, like “relevant service providers,” that we would have to wade through during drawn-out lawsuits few of us could afford. It would generate a complex maze of “standard” and “designated” technical measures that apply to different companies in different ways—we would have to figure out which ones we had to adopt and if we got it wrong we would be back in court. This is all setting aside any actual copyright infringement, because the bill would allow large rightsholders to sue us just over whether we were using the right technologies.

Finally, it is not just about our businesses. Many of us know, first-hand, how improper copyright takedowns force our user’s non-infringing posts offline. Over-reliance on technology promises to exacerbate those concerns, stripping your constituents of expressive, creative, and economic opportunities. With stakes this high, we hope you will reconsider the SMART Act and instead focus on pro-innovation proposals that can expand opportunities for us and our users.

The Internet Archive has also made it clear just how dangerous this bill would be:

This bill and its supporters do not represent the public’s interest in fair copyright policy and a robust and accessible public domain. That is a shame, because much good could be done if policymakers would put the public’s interest first. For example, the Copyright Office—which holds records of every copyright ever registered, including all those works which have passed into the public domain—could help catalogue the public domain and prevent it from being swept up by today’s already-overzealous automated filtering technologies (an idea inspired by this white paper from Paul Keller and Felix Reda). Instead, the public domain continues to be treated as acceptable collateral damage in the quest to impose ever-greater restrictions on free expression online.

This bill is extremely harmful. So far, all signs suggest that Tillis and Leahy don’t care about that at all. But the people who use the internet every day should care about it — and should care about the cavalier attitude these senators have towards the internet, all because Hollywood supports them and hates the open internet.

LIBRARY COPYRIGHT ALLIANCE OPPOSITION TO SMART COPYRIGHT ACT S. 3880

“The Library Copyright Alliance (LCA) strongly opposes enactment of the SMART Copyright Act of 2022, S. 3880, introduced by Chairman Leahy and Ranking Member Tillis. Before addressing the specific problems with the legislation, including the burdens it would place on libraries and free expression, LCA explains that S. 3880 is both unnecessary and premature….”

Why the snippet tax of the EU Copyright Directive is pointless and doomed to fail – Walled Culture

“The EU Directive on Copyright in the Digital Single Market contains two spectacularly bad ideas. One is the upload filter of Article 17, which will wreak havoc not just on creativity in the EU, but also on freedom of speech there, as algorithms block perfectly legal material. The other concerns the “snippet tax” of Article 15, more formally known as ancillary copyright..

Just as the impetus for the upload filter came from the music and film industries, so the lobbying for Article 15 came from newspaper publishers. The logic behind their demand, such as it was, seemed to be that Google was making money from ads on its pages that had some links to newspaper sites. That ignored two inconvenient facts. First, that Google’s dedicated news site, Google News, had precisely zero ads on its pages. And secondly, the pages on the main Google search engine that did have ads, had many other search hits alongside links to newspapers. And those links to newspaper sites send a considerable flow of traffic, that publishers have repeatedly shown they are desperate to have….”

Authors Alliance Opposes the SMART Copyright Act of 2022 | Authors Alliance

“Last week, Senators Thom Tillis and Patrick Leahy introduced new legislation regarding technical protection measures used to protect copyrighted works online, entitled the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022. This new legislative proposal represents the latest in a multi-pronged effort to fortify protections for copyrighted works online (coming on the heels of the Copyright Office’s recent notice of inquiry about the development of technical protection measures, about which Authors Alliance submitted a comment). If passed, the SMART Copyright Act of 2022 would establish a procedure for the Librarian of Congress to designate standardized protection measures (“STMs”) to be adopted by online service providers. 

Authors Alliance strongly opposes the SMART Copyright Act of 2022. By requiring that digital platforms and service providers implement technical protection measures which could monitor content uploaded by users, the SMART Copyright Act of 2022 could lead to content “filtering mandate[s]” interfering with authors’ and other creators’ abilities to speak freely online. Authors and creators are the parties that copyright law is designed to protect, making the proposal one that is inconsistent with the very purposes of copyright. 

The SMART Copyright Act of 2022 would enable the Librarian of Congress to designate STMs to be implemented across industries, supposedly based on input from a diverse group of stakeholders. While the bill’s sponsors claim that the legislation “ensures that any designation of existing measures requires input from all stakeholders and assessment of public interest considerations,” it is telling that groups representing the content industry have praised the proposed legislation, while proponents of fair use and the free exchange of knowledge have opposed it. Even if the Copyright Office were to develop STMs that reflect a broad consensus across a diverse group of stakeholders, this would leave out the stakeholders who do not favor the widespread implementation of STMs in the first place (like Authors Alliance). Mandating that service providers use content moderating technology would impede the free flow of information and would not serve the interests of authors and creators who prioritize seeing their works reach wide audiences. …”

CC Australia’s response to the exposure draft of the Access Reform Bill | by Elliott Bledsoe | Creative Commons: We Like to Share | Mar, 2022 | Medium

“On Friday 25 February the Creative Commons Australia Chapter (CC Australia) made a submission to the Australian Government Department of Infrastructure, Transport, Regional Development and Communications in response to their consultation on the exposure draft of the Copyright Amendment (Access Reform) Bill 2021 and a review of the technological protection measures (TPMs) exceptions in the Copyright Regulations 2017….

In the submission, CC Australia expresses its support for the proposed reforms as they harmonise with CC’s vision and mission. There are strong public interest arguments to support activating orphan works and supporting equitable access to cultural collections (and it aligns with CC’s Open GLAM Program). Permitting quotation of copyright material in a range of noncommercial scenarios will help make research available to the research community and the public quicker. And further facilitating online education and encouraging flexibility in the delivery of government services are both worthwhile endeavours….”

Publishing Giants Are Fighting Libraries on E-Books – Sludge

“According to a recent survey by the library group ReadersFirst, e-book prices for libraries have tripled over the past nine years, with publishers charging between $20 and $65 for an e-book copy that libraries cannot own permanently. For popular e-books, libraries pay $55 for a copy that expires after two years, or $550 for a copy for 20 years, compared with the about $15 that a consumer would pay, according to the American Library Association (ALA).

The Maryland law passed 130 to 0 in the General Assembly and 47-0 in the Maryland Senate, and took effect on the first day of this year. Last month, however, a federal judge issued a preliminary injunction, siding with AAP’s argument in their lawsuit that the law interferes with federal copyright law. The Maryland attorney general will defend the state’s law, a stance applauded by the ALA. …

As it fights against these bills, the AAP and its affiliated groups, backed by massive corporations, have far more money and resources to apply to their legal work, and have spent far more on lobbying efforts and political contributions. …”

The ratchet: even demonstrably ineffectual and unnecessary copyright laws are never repealed – Walled Culture

“nd here is what the European Commission’s own evaluation found:

The economic impact of the “sui generis” right on database production is unproven. Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases….”

The report also wrote that the “empirical evidence, at this stage, casts doubts” on the need for a special copyright for a thriving database industry. So you might think that the obvious, rational thing to do would be to repeal an ineffectual, unneeded monopoly. Instead, the report noted that repealing the directive “would probably lead to considerable resistance by the EU database industry.” In other words, purely because the copyright industry would whine about it, the European Commission’s report recommended leaving in place a law that by its own research was shown to be pointless.

 

This is a perfect example of the copyright ratchet: the fact that copyright always gets longer, stronger, and broader, and that once passed, copyright laws are never weakened or repealed. It’s one of the reasons why copyright is such a disaster today. Its laws were framed for the analogue world, and the copyright industry refuses to countenance updating them to make them fit for the digital world. Indeed, as the upload filters in the EU’s horribly-misnamed Directive on Copyright in the Digital Single Market show, new laws are actively making things worse.”

New transparency bills would force teachers to post instructional materials – The Washington Post

“…Lawmakers in at least 17 state capitols and Congress are pushing legislation that would require schools to post all instructional materials online. Their goal, at least in part, is to enable parents who distrust their children’s schools to carefully examine teaching materials — enabling protests or, in some cases, giving people fodder to opt their children out. That includes materials on race and racial equity but also any other topic that might spark disagreement….”

Simplicity, flexibility, equity – IFLA submits comments on South Africa’s Copyright Amendment Bill – IFLA

“IFLA has responded to a call for comments on the South African Copyright Amendment Bill, highlighting the need to reject proposals that will have a chilling effect on the work of libraries, and deepen divisions in terms of access to education, knowledge and culture.”

Connecticut Introduces Library E-book Bill

“Connecticut has become the latest state to introduce a library e-book bill, introducing bill 131 in its February session.

The Connecticut bill is similar to efforts in other states now underway, in that it would require publishers who offer an e-book to consumers in the state to also offer to license the works to libraries on reasonable terms. One notable difference, however, is that the Connecticut bill offers a broad definition of what is meant by “reasonable” terms….”

Alberto López Cuenca & Renato Bermúdez Dini (2022) Otros términos para debatir la propiedad intelectual (Beyond the Author’s Rights: Debating Intellectual Property in Other Terms) | Open Humanities Press

On July 1, 2020, reforms to the Federal Copyright Act (LFDA, for its acronym in Spanish) entered into force in Mexico responding to the primarily economic requirements of the renewed free trade agreement with the United States and Canada, the USMCA. Facing these reforms, a group of Mexican and international associations and individuals raised their voices due to the numerous implications that they entailed for free speech, due judicial process, access to culture and education, technological sovereignty and their environmental impact, among others. In order to trace the deep reaching that the LFDA has today to the detriment of other rights and already established practices, from the Centro Cultural de España in Mexico City we proposed to inscribe these concerns and debate them on a broader sociocultural plane, starting from four conceptual nodes: 1) native knowledges; 2) open knowledge; 3) digital selfediting and rewriting; 4) hacktivisms. This book brings together contributions from Alberto López Cuenca, Anamhoo, David Cuartielles, Diana Macho Morales, Domingo M. Lechón, Eduardo Aguado-López, Gabriela Méndez Cota, Irene Soria, Leandro Rodríguez Medina, Marla Gutiérrez Gutiérrez, Mónica Nepote, Nika Zhenya, Renato Bermúdez Dini and Víctor Leonel Juan-Martínez.

El 1 de julio de 2020 entró en vigor una reforma a la Ley Federal del Derecho de Autor (LFDA) en México que respondía a las exigencias prioritariamente económicas del renovado tratado de libre comercio con Estados Unidos y Canadá, el T-MEC. Frente a estas reformas, un conjunto de colectivos, asociaciones e individuos mexicanos e internacionales levantaron la voz por las numerosas implicaciones que suponían para la libertad de expresión, el debido proceso judicial, el acceso a la cultura y a la educación, la soberanía tecnológica y el impacto medioambiental, entre otras. Para rastrear el profundo alcance que en nuestros días tiene la LFDA en detrimento de otros derechos y prácticas ya afianzadas, desde el Centro Cultural de España en Ciudad de México nos propusimos inscribir estas preocupaciones y debatirlas en un plano sociocultural más amplio, a partir de cuatro nodos conceptuales: 1) saberes originarios; 2) conocimiento abierto; 3) autoedición y reescrituras digitales; 4) hacktivismos. Este libro reúne contribuciones de Alberto López Cuenca, Anamhoo, David Cuartielles, Diana Macho Morales, Domingo M. Lechón, Eduardo Aguado-López, Gabriela Méndez Cota, Irene Soria, Leandro Rodríguez Medina, Marla Gutiérrez Gutiérrez, Mónica Nepote, Nika Zhenya, Renato Bermúdez Dini y Víctor Leonel Juan-Martínez.

 

EU and US legislation seek to open up digital platform data

“Despite the potential societal benefits of granting independent researchers access to digital platform data, such as promotion of transparency and accountability, online platform companies have few legal obligations to do so and potentially stronger business incentives not to. Without legally binding mechanisms that provide greater clarity on what and how data can be shared with independent researchers in privacy-preserving ways, platforms are unlikely to share the breadth of data necessary for robust scientific inquiry and public oversight (1). Here, we discuss two notable, legislative efforts aimed at opening up platform data: the Digital Services Act (DSA), recently approved by the European Parliament (2), and the Platform Accountability and Transparency Act (PATA), recently proposed by several US senators (3). Although the legislation could support researchers’ access to data, they could also fall short in many ways, highlighting the complex challenges in mandating data access for independent research and oversight….

Platforms’ hesitancy to share data with researchers is not wholly unwarranted. A Facebook-approved research partnership with Cambridge Analytica resulted in scandal, a $5 billion fine by the US Federal Trade Commission (FTC) for privacy violations, and new requirements in an FTC consent order to implement comprehensive data privacy and security safeguards (9)….”

 

Illinois, Rhode Island Introduce New Library E-book Bills

“Illinois has become the latest state to introduce a library e-book bill, with state legislators last week introducing the Equitable Access to Electronic Literature Act. In addition, Rhode Island legislators have re-introduced their library e-book bill in the new legislative session after a previous effort stalled last year.

The Illinois bill provides that publishers that offer “a contract or license for electronic literary product acquisition to the public shall offer to license the electronic literary product to libraries, if purchased with public funds, on reasonable terms and under reasonable technological protection measures that will permit libraries to provide their patrons with access to the electronic literary products.” 

The bill in Rhode Island is similar, although it specifically expands the law to cover “elementary and secondary schools and educational institutions” in the state.

The bills are also similar to efforts passed in Maryland and New York last year (although New York governor Kathy Hochul vetoed the bill last month.) Similar bills are being considered in several more state legislatures, library leaders tell PW….”