SMART copyright law ‘would hold tech accountable’, say senators

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The floor of the United States Senate.

The “SMART Copyright Act” has been formally introduced in the US Senate, and the bipartisan legislation “would hold technology accountable by developing effective and widely available measures to combat copyright theft,” according to its authors.

Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) presented today SMART copyright law, short for “Strengthening Measures to Advance Rights Technologies Copyright Act of 2022”. The two lawmakers previously co-sponsored the CASE Act of 2019, encompassing a “small claims court on copyright,” and the RIAA, ASCAP, the Recording Academy, and all sorts of other industry organizations from music have praised Tillis in the past.

But this latest legislation, for which a “Myths versus Facts” page was conveniently posted on senators’ websites, would establish a system under which the Librarian of Congress could pass regulatory measures (based on suggestions from rights holders) for any “online service or access provider to the network” which enjoys “safe harbor” protections under the Digital Millennium Copyright Act (DMCA).

First, the SMART Copyright Act proposes to clarify the definition of “standard technical measures”, which currently refer to “technical measures used by copyright owners to identify or protect copyrighted works” – and that each “service provider” must not “interfere” in order to benefit from safe harbor protection .

With respect to the elaboration highlighted on the original definition of standard technical measures, the proposed legislation adds that said measures must have been “identified or developed in accordance with…a broad consensus of copyright owners and relevant service providers, through an open, fair, and voluntary process, for technical measures applicable to a particular industry, type of work, type or size of service provider, or type of technical measure.

These standard technical measures (together with the “designated” variation covered below) would also be “available to any person” on a “royalty-free basis” or “reasonable royalty basis” as well as “non-discriminatory terms”, adds the bill. , again without imposing “substantial and disproportionate costs on service providers”.

Most of the SMART Copyright Act proposes to add to the fifth chapter of Title 17 of the United States Code (titled “Copyright Infringement and Remedies”), a system under which the Librarian of Congress, in coordination with the Copyright Registry, would create and review “designated technical measures” that apply to each “Covered Service Provider”. or “an online service or network access provider”.

Of course, the definition of “online services” today applies to a range of internet companies, including content-sharing giants like YouTube, as well as the internet service providers themselves. (The legislation specifically mentions each entity that “provides storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”)

In short, regarding the process behind the creation of the aforementioned technical measures, the Librarian of Congress would “accept petitions” from service providers, “owners of copyrighted works” and various “stakeholders” to new rules in the first year of the legislation. promulgation and every three years thereafter.

From there, the Librarian could then initiate “a rule-making process”, including at least a public hearing on the proposed technical measure, and the registry would proceed to consider factors including the potential “burden” of technical measurement on service providers. Notably, this burden would be weighed against “the total amount of alleged or demonstrated infringing activity” through the systems described and “the revenues and other financial resources of the type of service providers described in the petition.”

Then the registry “would make a recommendation that includes a written input from the chief technology adviser to the librarian” — a person, the legislation reveals at its end, to be appointed alongside a “chief economist” for a maximum term of five years, funded by the bill’s staggering $900,000 budget for fiscal year 2023 and the $700,000 budget (adjusted for inflation after 2025) for “each fiscal year thereafter.”

Ultimately, however, if the librarian concludes “that the record supports the designation of a proposed technical measure”, he or she will “simply designate the proposed technical measure”. Covered service providers would have the ability to appeal any designation within 90 days, and copyright owners could seek damages in federal court for alleged violations of the law.

The maximum statutory damages (as opposed to default actual damages) per breach would be tied to the number of breaches, depending on the legislation – including $200 to $25,000 (up to $150,000) each, 5 $000 to $400,000 (up to $800,000) for two or more violations, and “not more than three times” such or actual damages for three or more violations.

The Artist Rights Alliance has reached out to Digital Music News with a statement about copyright law SMART, saying it “applauds” the bill and had previously voiced support for “standard technical measures” in the comments. submitted to the Copyright Office.

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