Yesterday, Authors Alliance joined 31 other organizations and individuals in alerting members of Congress about serious problems with the new proposed Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022. Authors Alliance previously voiced our disapproval of the proposal for the simple reason that it would not serve the interests of all authors, including many of our members. In a letter addressed to Senators Patrick Leahy and Thom Tillis, the bills’ sponsors, the signatories explained why the SMART Act is problematic and would not serve the creators that copyright is designed to protect. You can find the full text of the letter here.

First, the letter explains that the changes the bill would make to the Digital Millennium Copyright Act (“DMCA”) would narrow the scope of “safe harbors,” which limit an online service provider’s copyright liability for the infringing activity of users. This is because standard technical measures could be required under the SMART Copyright Act in order for online service providers to maintain this limitation on liability. DMCA safe harbors are considered by many to be essential for fostering innovation and creativity online, and eroding these safe harbors threatens to “inject uncertainty into a law that has . . . supported creators, rightsholders, consumers, and online service providers of all kinds.”

Second, the letter points out that mandating designated technical protection measures for online service providers, as the bill contemplates, is beyond the Copyright Office’s expertise, as it would “transform[] [the Office] into an Internet regulator with responsibility for overseeing an elaborate, multi-agency bureaucratic process.” The Copyright Office as reimagined by the SMART Act would have very broad authority over online speech, an area that is also not within its traditional sphere of expertise. While the SMART Copyright Act would also add a new “Chief Technology Advisor” to the Copyright Office, this is not enough to overcome the Office’s limited expertise in this area.

Lastly, the letter argued that mandating designated technical protection measures is not needed to combat copyright infringement online. Digital service providers are already “fine tuning their voluntary efforts to combat infringement online . . . and they have done so with tremendous success.” The SMART Copyright Act would have the effect of “freez[ing] these efforts” for years at a time because it envisions a triennial process, similar to the triennial rulemaking for exemptions to the DMCA’s prohibition on breaking digital locks. Malicious infringers could quickly find workarounds for the mandated designated technical protection measures, and service providers would be unable to alter their technical protection measures to prevent such infringement if these were government mandated, as the SMART Act proposes.

Authors Alliance will be monitoring the progress of the SMART Copyright Act of 2022 and will keep our readers appraised of any new developments.