The Smart Copyright Act May Not Be So “Smart”

By Katharine A. Buescher
J.D. Candidate 2024
Saint Louis University School of Law

What started out as a way to create a healthier Internet for rights owners may become a way for police officers to take advantage of a law to avoid taking responsibility for their actions on the job.

U.S. Senators Thom Tillis and Pat Leathy recently introduced the Strengthening Measures to Advance Rights Technologies Copyright Act of 2022 (SMART) to create effective measures to reasonably combat copyright piracy, lower transaction costs, accelerate information sharing, and make the Internet a better place. The earlier Digital Millennium Copyright Act of 1998 (DMCA) was supposed to protect online service providers from effectively paying for the copyright theft by others facilitated by their systems if those providers work with copyright owners to create and implement effective takedown approaches but accommodate and don’t interfere with standardized technical measures (STMs). The new SMART bill includes a section that requires the Librarian of Congress and Copyright Office to review and approve proposals for such technical measures. This would lead to the adoption of new designated technical measures (DTMs) for monitoring and enforcing copyright claims which every website or online service provider that has user-uploaded content would need to use or possibly face loss of the DMCA “safe harbor” and being hit with statutory damages. Such DTMs could create problems by limiting the platforms on which users can exercise their freedom of speech, however.

For example, DTMS in the form of mandated upload filters for websites hosting user-generated content might facilitate perhaps unanticipated abuses of rights. Some police officers required to wear body cameras to raise accountability for their actions are now reportedly using the presence of such filters already on certain websites to avoid punishment for their unacceptable behavior towards civilians while working. Under this approach, if an officer with a body camera might be abusing his or her power while being filmed by a bystander’s cell phone, simply playing a famous song at the same time could lead to a copyright filter effectively preventing the video from being posted on a site utilizing such a filter. This creates concern when we live in a world susceptible to police abuse, with being able to use a recorded video to prove an officer’s wrongdoing and raise awareness being stifled automatically due to copyright filters.

People who wish to create awareness by recording and informing others of serious police actions that are not acceptable should not be automatically stopped by such deliberate tactics. The SMART Copyright Act as presently drafted could easily allow officers to get away with abusing their power unless changes are made. It’s time to get smart about SMART.

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