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.