By Nathalie Voit

U.S. Sens. Thom Tillis (R-NC) and Patrick Leahy (D-VT) introduced bipartisan legislation on March 18 to tackle the nation’s woefully outdated online copyright laws.

The proposal, called the SMART Copyright Act of 2022 (S. 3880), is the culmination of a years-long struggle by Sen. Tillis to update the nation’s existing copyright rules to make them more fit for the modern internet age.

“Almost every single thing about the internet has changed in the last 22 years, and the law simply hasn’t kept pace with the technology,” the senator said in 2020. “The original Digital Millennium Copyright Act (DMCA) was simply not designed for the kind of global data and advertising platforms that we’ve seen develop over time.”

The new bill would overhaul much of the provisions under the DMCA, the U.S. copyright law passed by Congress in 1998. Under the DMCA, tech platforms are shielded from legal liability if they are found infringing on copyrighted material so long as they work with copyright owners to devise effective standardized technical measures (STMs) or techniques to identify and protect against the distribution of pirated content. Essentially, online service providers are given legal immunity over infringing user-created content in exchange for working to remove or block access to stolen data such as pirated films or music on sites like YouTube.

Yet rather than incentivizing open collaboration between platforms and rights holders to develop and adopt shared tools to combat online piracy, which was the original function of the act, the law actually inhibited it because the tech industry feared losing their valuable “safe harbors” if an STM was created, according to Sens. Tillis and Leahy. No STMs have been identified since the law went into effect nearly 25 years ago.

“In the fight to combat copyright theft, there is currently no consensus-based standard technical measures, and that needs to be addressed,” Sen. Tillis said in a press release. “I am proud to introduce this bipartisan legislation that will provide widely available piracy-fighting measures and create a trusted and workable internet for our creative communities.”

The proposal is a welcome relief for the music and movie industries, which for decades have been calling on Congress to amend the nation’s existing copyright rules to address the problem of digital theft.

In a joint statement issued by the Recording Industry Association of America (RIAA) and the National Music Publishers’ Association (NMPA) on March 18, Chairman and CEO of RIAA Mitch Glazier called the SMART Copyright Act “a big step toward balancing the interests of creators and tech companies in today’s integrated commercial marketplace.” 

“Congress intended that creators and platforms work together to protect copyright and consumers, and this proposal achieves that goal,” he added.

President and CEO of NMPA David Israelite made similar remarks.

“The DMCA for years has left songwriters and music publishers with few avenues to protect their work online. We applaud Senators Tillis and Leahy for their leadership to strengthen technical measures to hold giant tech platforms more accountable. This is a great first step towards fighting online piracy, which continues to be a major threat to the livelihood of our creative community,” said Israelite.

However, not everyone is keen on the new proposal, with some open web advocacy groups referring it to as “dangerous” and censorious.

“Congress should not be fooled by rightsholder talking points; this bill is very dangerous,” said Re:Create Executive Director Joshua Lamel in a statement on Friday.

Lamel, the head of the Re:Create Coalition, which represents tech lobbying associations and digital freedom groups such as the Open Technology Institute and Public Knowledge, warned the new government-imposed technical guidelines would “result in content filtering – stifling creativity, innovation, and the flow of information.”

“From apps and the cloud to social media, blogging, and video games, technical mandates will destroy online creativity, censor free expression online, hurt consumer choice, and hold back new startups,” he said.

“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,” the group tweeted on Monday.

In a bid to untangle myth from truth, Sens. Tillis and Leahy provided a brief two-pager of what the bill will and will not do for the public. The senators also attached a short summary of the bill to their press statement.

Click here to access the full text of the bill.