Senators want to mandate anti-piracy technology across the web

The US Copyright Office would have the power to mandate the adoption of anti-piracy technology across the internet under a bill introduced by two senators. The websites that failed to comply would be hit with damages of $150,000 on the first offense. The bill is co-sponsored by two senators, one of whom is a senior Democrat.

There is currently no consensus-based standard technical measures that need to be addressed in the fight to combat copyright theft, according to a press release by Tillis last month.

But opponents don't agree with that. A letter signed by a coalition of public interest and tech industry lobbying groups argues that the proposal would put an agency with no engineering or other relevant expertise in charge of how digital products are designed.

It is not clear when this legislation will come up for a vote. A bill like this would be considered by a Senate committee before it goes to the floor. It has become more and more common for bills like this to get attached at the last minute to huge spending bills.

In December 2020, Tillis introduced legislation to make it a felony to run a pirate streaming site. The proposal was attached to the massive spending bill two weeks later. The bill became law before most lawmakers had time to read it.

We don't know if the same thing will happen with the SMART Copyright Act. We thought it would be worth looking into the legislation now.

A new approach to filtering

The Digital Millennium Copyright Act was the last comprehensive revision of the law. The notice-and-takedown system is familiar to many Internet users. Under this system, online service providers are protected from liability if they take down potentially illegal material when they are notified.

The rule included a requirement that a service provider does not interfere with standard technical measures. They wanted service providers to flag and take down watermarked content if the owner did not authorize it.

That has not happened almost a quarter-century later. The courts have not identified any standard technical measures that online service providers must accommodate. Most major platforms have developed their own filters. ContentID is a system that uses fingerprinting technology to automatically detect video and audio content. The system was created with $100 million from YouTube.

Many smaller websites do not use anti-piracy technology. Some rightsholders think this is a problem. The new law would give the Library of Congress and the US Copyright Office the power to pick their own anti-piracy measures.

A new three-year cycle would be established to adopt new anti-piracy technologies. The public could submit petitions every three years. The Copyright Office would seek public comment on each proposal and decide which ones would become mandatory. The new measures would need at least a year to be implemented. The process would start again a year or two later.

If you're a copyright nerd, this process might sound familiar. The Copyright Office had the power to grant case-by-case exceptions. The Copyright Office is too biased toward copyright holders and the process is too disorganized, according to some copyright reformers. It has been used as a model in new legislation.