Internet Archive Joins Opposition to the “SMART Copyright Act”

In the past few weeks, governments around the world have renewed their efforts to restrain free expression online. In Canada, a revised “Online Streaming Act” comes as the latest in a long-running attempt to bring streaming under a restrictive regulatory regime. In the UK, a new “Online Safety Bill” seeks to censor “legal but harmful content” in a way that would threaten open digital spaces. And in the USA, content filtering is once again being floated as the answer to online copyright infringement, this time via the “SMART Copyright Act of 2022“.

If the SMART Copyright Act were to pass, the Copyright Office would select a “technical measure” every three years that online service providers would be required to implement. The intent, as supporters have made clear, is for the Copyright Office to mandate technical measures that would automatically “filter out” allegedly infringing material. Lobbyists and lawyers for the owners of these technologies would be allowed to petition the Copyright Office to require the adoption of their own products. Whatever technology is adopted would then have to be purchased and implemented by anyone swept up by the law—from big tech platforms to your local research library. Failure to do so could be punishable by millions of dollars in civil penalties, among other things. As Professor Eric Goldman has written:

The SMART Copyright Act is a thinly veiled proxy war over mandatory filtering of copyrighted works. . . mandatory filters are error-prone in ways that hurt consumers, and they raise entry barriers in ways that reduce competition.

More generally, the SMART Copyright Act would give the Copyright Office a truly extraordinary power–the ability to force thousands of businesses to adopt, at their expense, technology they don’t want and may not need, and the mandated technologies could reshape how the Internet works.

Wouldn’t It Be Great if Internet Services Had to License Technologies Selected by Hollywood? (Comments on the Very Dumb “SMART Copyright Act”), from Eric Goldman’s Technology & Marketing Law Blog on March 23, 2022

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.

It is no surprise that the Electronic Frontier Foundation, Public Knowledge, the Library Copyright Alliance, and many others have voiced criticism of this harmful bill. Today, Internet Archive joins these and other signatories in a joint letter to the bill’s cosponsors, Senators Tillis and Leahy, expressing opposition and concern. You can read the letter here.

6 thoughts on “Internet Archive Joins Opposition to the “SMART Copyright Act”

  1. Adam

    Welp, copyright filters is the anti-piracy version of the scunthorpe probem. People will find ways to avoid filters, by altering the content in some ways (steganography, obfuscation, and encryption) which is the equivalent of swapping letters and numbers and using phrases of a banned word, meanwhile everyday uploads of perfectly legitimately posted content, even ones that uses 0% of copyrighted material got caught in the filter, which is equivalent to safe words happen to have a substring spelling a banned word.

    Try to fix it? Well, that could enable new exploits based off of things that were previously banned then lifted. For example, by lifting the ban on swear words if there’s a space in between the 2 words: “his hit” (it previously banned because of the word “$hit” with the S in “his” and “hit”), however that enables people to just add random spaces in the swear word to bypass the filter (like “I s hit you not”). Add a whitelist enables bypassers to take advantage of that, while broad systems could catch innocents things. This is a trade-off situation.

    There are infinite ways to avoid the filter given that there are countless ways to alter a content in a way that can be understood by a human being or have it altered but not be readable but can be reverted back to a readable content. More ways than just speaking in a different ways designed so that “outsiders” don’t know what that means.

  2. Danny Wheeler

    Being an election year, it’s very unlikely the bill will pass this time around. And one of the senators is considering retiring soon. Still, better keep watch.

  3. subpixel

    This will lead us toward a world where individuals will not be allowed to freely post anything; all content will be “moderated”; scanned and approved (likely at a price) before being allowed to be published. Misspelled words, extra spaces, substituted letters, and other basic manipulation of words will not be allowed by default.

  4. Ken Carver

    These government “servants” all bought out by special interest groups and lobbyists, filling their own troughs with money. Then there’s the aspect of their total ignorance of technology. It’s sickening


    In the interest of reaching millions of Americans regarding the “SMART Copyright Act” is it feasible to take your letter and add link(s) so anyone here could copy and place on social media platforms. People could read the letter and click to send the letter to their Senator or all Senators?
    I would post it as I’m sure many others would.

    This censorship idea is critical to USA freedoms. While this one bill is atrocious, it always escalates and sometimes not incrementally. We must put an end to elected officials creating bills ‘just because they can’.
    Forcing Congress to know the Constitution and receiving punishment in something more than… election day loss… would be the best insurance citizens have to stop this constant battle with’ toxic water spilling out ruining our entire nation. We must stop the smallest of leaks.’

    At any rate, thank you for your letter and for preserving freedom and liberty for Americans.

  6. Pingback: Basically Everyone Tells Senators Tillis & Leahy That The SMART Copyright Act Is An Incredibly Dumb Copyright Act – Breaking Legal News & Current Law Headlines | Daily Legal Briefing

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