What the SMART Act is and Why it is America’s Article 17 (Upload Filters)

The US has tabled something that is known as the SMART Act. This is known by critics as America’s upload filters law.

It’s been a whole day since Bill C-11 haven’t conjured up something else that needed debunking and Canada’s Link Tax is still just something found on a notice paper. So, mercifully, we can finally talk about something else that is important happening elsewhere in the world.

About two weeks ago, senators Pat Leahy and Tom Tillis tabled something that is known as the SMART Copyright Act of 2022 (AKA, Strengthening Measures to Advance Rights Technologies Copyright Act of 2022). The legislation is a bit of a legal pretzel designed to mislead people as to what the real intent of the legislation is. Basically, it lets the Copyright Office set a standard of technical measures for the Internet. These “standard technical measures” would then be forced onto websites, punishing those who do not comply with statutory damages.

What are these “standard technical measures”? It’s whatever Hollywood deems necessary as these measures would be effectively mandatory on websites. Every 3 years, the Copyright Office will get to determine what websites need to implement or risk getting sued into oblivion. It could be site blocking or it could be what the copyright industry has been pushing heavily for: online filters.

So, why not just explicitly call this “filters”? This is part of a new form of policy fraud we’ve been observing for the last several years. Dishonest politicians who basically get handed untold sums of money from lobbyists from large corporations have been constantly hammered by critics whenever they try to do their bidding. Basically, if a politician wants mass Internet censorship, they would just draft language that is directed at such a cause. They might put a little window dressing to pretend that there is balance in the legislation, but experts and general observers typically see right through the lies.

It’s how real news outlets such as ourselves are able to basically copy and paste portions of the bill and throw it in lawmakers faces whenever they try and say that the bill doesn’t do what it says it does. In Canada, we saw this through Bill C-11 which basically said that the bill doesn’t regulate a users content unless that content is somehow uploaded or it is content that the regulator considers something that can be regulated. Basically, tell me this is about regulating user generated content without saying that this is about regulating user generated content.

What is going in the SMART Act, however, is more nefarious then what the Canadian legislation is doing. By setting the term to something vague like “standard technical measure”, it also basically gives a blank check to Hollywood to basically dream up any stupid thing they can come up with and order websites to implement it. Just look at this definition straight from the bill:

Section 512(i) of title 17, United States Code, is amended by striking paragraph (2) and inserting the following:

“(2) DEFINITION.—In this subsection, the term ‘standard technical measures’ means technical measures that are used by copyright owners to identify or protect copyrighted works, or by service providers to identify or manage copyrighted works on the service, and—

“(A) have been identified or developed pursuant to—

“(i) a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry process; or

“(ii) a broad consensus of relevant copyright owners and relevant service providers, in an open, fair, voluntary process, for technical measures that are applicable to a particular industry, type of work, type or size of service provider, or type of technical measure;

So, in the same vein as Bill C-11, tell me this is bill is about upload filters without saying that this bill is about upload filters.

Of course, while this is definitely written with upload filters in mind, the real question is, what wouldn’t fall into these categories in the first place? What about, say, site blocking? Could site blocking be considered a “standard technical measure”? Site blocking can be proposed by “a broad consensus of copyright owners”. It can be “applicable to a particular industry”. What’s more is that it could be a “type of technical measure”.

What’s more is what we see later on down the bill:

“(8) TECHNICAL MEASURE.—The term ‘technical measure’ means a technical measure that—

“(A) is used by—

“(i) a copyright owner to identify or protect a copyrighted work; or

“(ii) a service provider to identify or manage a copyrighted work; and

“(B) may vary across types and sizes of service providers.

Really, what wouldn’t fall into the category of a measure that a copyright owner can use to “identify or protect a copyrighted work”? Upload filters are an obvious answer. It could be argued that site blocking could be used to “protect a copyrighted work”. Disconnecting a user from the Internet could be used to “protect a copyrighted work”. A link tax could fit into the definition of something that can be used to “protect a copyrighted work”. Really, we can’t think of a bad Internet and copyright policy that wouldn’t neatly fit into this vague definition that caused uproar in the past.

So, while this is basically a blank check for the big multinational corporations like movie studios and record labels to basically dictate how the Internet operates, upload filters is generally front and centre because that has been the latest flavour of bad Internet policy being pushed by these entities. It was only last year that we talked about Article 17 which is Europe’s upload filter (once called Article 13. While European citizens generally lost that battle to protect free speech online, many long time observers knew that it was only a matter of time before the policy got laundered to other countries like the US (yes, to paraphrase an old Cory Doctorow term).

So, the nuances found in the bill that hint towards upload filters specifically is no surprise. That is one of a number of flavours of bad Internet policy floating around in the world right now (along with banning encryption, link taxes, and online harms to name three particularly big ones). Still, the fact that this leeway for multinationals to dream up anything they want and implement it definitely shows just how absolutely evil this legislation is in the first place. It’s basically the equivalent of letting the candle making industry dictate how any forms of light production should work and not have to bother with pesky little things like lobbying for laws to bend to the industry’s whims or wishes. It makes no sense.

Unsurprisingly, observers and digital rights organizations are up in arms over this. The Electronic Frontier Foundation (EFF) said that this bill is so bad, it cannot be fixed:

After the defeat of SOPA/PIPA, Big Content has mostly focused on quiet, backroom deals for copyright legislation, like the unconstitutional CASE Act, which was so unpopular it had to be slipped into a must-pass bill in the dead of winter. But now, almost exactly a decade later, they’ve come screaming out of the gate with a proposal almost as bad as SOPA/PIPA. Let’s hope it doesn’t take an Internet Blackout to kill it this time.

Instead, it puts the Librarian of Congress in charge of designating technical measures—and requires virtually every service provider to comply with them.

This bill cannot be fixed. Let us count the ways:

Tech Mandates Will Stifle Competition

Any requirement to implement filtering or another technical measure would distort the market for internet services by privileging those service providers with sufficient resources to develop and/or implement costly filtering systems, reduce investment in new services, and impair incentives to innovate.

In fact, the largest tech companies will likely have already implemented mandated technical measures, or something close to them, so the burden of this mandate will fall mainly on small and medium-sized services. If the price of hosting or transmitting content is building and maintaining a copyright filter, investors will find better ways to spend their money, and the current tech giants will stay comfortably entrenched.

Worse still, the Library of Congress will now be in charge of both designating technical mandates and designating when and how it’s OK to break them for fair use purposes. That is a terrifying power—and one far too great to put in the hands of a bunch of D.C. lawyers, no matter how well-meaning. It’s worth remembering that the Copyright Office didn’t grant a single meaningful exemption to Section 1201 for the first six years of that law’s operation. What innovative new services, and which potential challengers to today’s tech giants, could we lose in six years?

Remaking the internet to serve the entertainment industry was a bad idea ten years ago and it’s a bad idea today. This dangerous bill is a nonstarter.

Meanwhile, Mike Masnick of Techdirt suggests that this bill is about destroying the Internet:

Everything about this bill is garbage. It starts out by basically mimicking the much maligned DMCA 1201 triennial review process. As you may recall, DMCA 1201 is the part about “anticircumvention” of technological protection measures, but everyone realized that making any kind of circumvention of DRM automatically copyright infringing would lead to all sorts of nonsense. But, rather than fix the law so it didn’t create nonsense, Congress came up with this completely ridiculous circus, where every three years people like documentary filmmakers, security researchers, and people who just want to repair their own devices, have to come groveling to the Copyright Office and Librarian of Congress, begging for a grant of dispensation, so they can actually do things that everyone recognizes should be perfectly legal.

In this new bill, this nuisance model is repeated, but flipped around. Basically, every three years, the copyright industry would ask the (very, very welcoming) Copyright Office (currently run by a former top copyright industry lobbyist) to designate certain “technical measures” as blessed from on high. Then “covered” service providers would effectively be required to use these “technical measures” or face stringent statutory damages.

Make no mistake, this bill is a way to try to force the internet to use filters. Because that’s what the copyright industries have always wanted, and they figure that this is the sneaky way to get their wish in the US. Never mind the fact that every single research effort to look at the impact of these things shows that filters massively overblock content and lead to significantly less speech online. Never mind the fact that filters cannot determine “fair use.” Never mind the fact that filters are expensive and would only be affordable by the largest internet companies.

This is a garbage bill designed, once again, to turn the internet into Hollywood’s vision of the internet: a place to promote and charge people for their content, rather than what it actually is, an open platform for communication. When your communications are “filtered” then it’s no longer a communications platform. It’s just another form of TV, which is exactly what Hollywood wants.

I guess, then, we’ll all just spend our time watching Pat Leahy’s cameos in the latest Batman flick, because what else will we have to do?

Indeed, here’s hoping that this legislation never becomes law. Otherwise, the Internet as a whole could be severely damaged because of this. For people outside of the US, the hope would then be to have replacements to sites and services we take for granted. That could include a non US based version of YouTube, Twitter, Facebook, TikTok, Spotify, and a whole lot more. Something like that would take years to rebuild and, what’s more, an American audience would likely be cut off in the process. What’s more is that American’s do not deserve this kind of terrible lawmaking in the first place. So, we all hope that this bill will get swept into the dustbin of history.

Drew Wilson on Twitter: @icecube85 and Facebook.

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