The ratchet strikes again: US SMART Copyright Act is even worse than EU upload filters

The EU’s Directive on Copyright in the Digital Single Market is bad news for many reasons. For example, it shows how the copyright industry has succeeded in obtaining yet more legislation to impose its outdated analogue approaches on the digital Internet. It was only able to do that by conducting a dishonest campaign about what the new Directive would do and how it would do it.

In addition, the new Directive is problematic because it will inevitably be put forward as the new benchmark for digital copyright laws around the world. That’s one important aspect of the copyright ratchet: the fact that once a law is passed in one jurisdiction that strengthens copyright in some way, it is invoked as a reason to strengthen copyright laws elsewhere, supposedly to create a “level playing-field”.

Using the EU Copyright Directive as a template has already begun. Pointing to the ancillary copyright created by Article 15 of the EU law, Australia has brought in its own system that forces Google and Facebook to pay for sending traffic to newspaper sites. Meanwhile, in the US, a new bill with the terrible name of “Strengthening Measures to Advance Rights Technologies Copyright Act of 2022” or “SMART Copyright Act of 2022” has been proposed, which builds on Article 17 of the EU law. Eric Goldman has the details:

The bill would authorize the Copyright Office to designate technology as “‘designated technical measures” (DTMs) that all [user-generated content] services must implement, and copyright owners could sue any services that don’t properly implement DTMs. In practice, copyright owners will force the entire Internet industry to adopt technology preferred by copyright owners – including mandatory filtering technology – and make the Internet services pay for it.

As Goldman explains, the SMART Copyright Act would essentially place the US Copyright Office in charge of mandating new technologies to control what people can do online – for example, by requiring upload filters. This would make explicit the general view among most politicians that the preservation of copyright monopolies is more important than defending the online freedom of ordinary citizens:

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. That’s an enormous amount of power to put into the hands of any government agency. It’s especially puzzling to give that enormous power to the Copyright Office given its relatively narrow focus. The Copyright Office is not expert at Internet technology, content moderation, or the inherent tradeoffs in publication processes. If Congress really thinks DTMs are worth pursuing, that’s a massively consequential decision for the Internet. It’s an important enough decision that Congress should solicit a multi-stakeholder study conducted by an entity with broader expertise than just copyrights, and Congress should vet and approve the recommendations itself through regular order rather than letting an administrative agency make such important decisions without further supervision from Congress.

This bill is a perfect demonstration of the copyright ratchet in action: now that the EU Copyright Directive has been passed, companies are lobbying to bring in something even worse in the US.

Featured image by ChristianLeigh1982.

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