For many years, U.S. lawmakers have considered options to update the DMCA so it can more effectively deal with today’s online copyright issues.
Many proposals have come and gone, without resulting in any significant update. That could be about to change.
Following repeated nudges from Senators Thom Tillis and Patrick Leahy, the Copyright Office started looking into automated tools that online services can use to ensure that pirated content can’t be easily reuploaded.
This “takedown and staydown’ approach relies on technical protection tools, which include upload filters. This is a sensitive subject that previously generated quite a bit of pushback when the EU drafted its Copyright Directive.
To gauge the various options and viewpoints, the Copyright Office launched a consultation last year, which triggered a wave of objections and opposition.
Last week, the Office followed up with yet another consultation, asking for input on shortcomings in the current DMCA legislation and what alternatives could help to improve things.
As things stand, online services are allowed to implement their own upload filters, which many do. Scanning uploads for potentially copyright-infringing content isn’t mandatory but that could change in the future.
The consultation outline mentions several potential changes to the DMCA’s Section 512, such as online services losing their safe harbor protection if they fail to implement specific “standard technical measures” (STMs).
“Is the loss of the section 512 safe harbors an appropriate remedy for interfering with or failing to accommodate STMs?” the Copyright Office asks.
“Are there other obligations concerning STMs that ought to be required of internet service providers?” the list of questions continues.
Stakeholders are asked to share their views on these matters. While it is uncertain whether any measures will be made mandatory, the Copyright Office is already looking ahead.
For example, who gets to decide what STMs will be mandatory, and how would the rulemaking process work?
“What entity or entities would be best positioned to administer such a rulemaking? What should be the frequency of such a rulemaking? What would be the benefits of such a rulemaking? What would be the drawbacks of such a rulemaking?”
According to Senators Thom Tillis and Patrick Leahy, the Copyright Office doesn’t have to look very far to find a suitable candidate to guide the rulemaking process.
In March, they introduced the SMART Copyright Act of 2022, which answers most of these questions outright.
The SMART bill requires online hosting services to implement standard technical protection measures to help combat piracy. It also clarifies that these measures should be designated by the Copyright Office, after seeking input from various experts and stakeholders.
In essence, the Copyright Office’s consultation can be seen as an unofficial review of the SMART bill. As such, it will likely see broad opposition from digital rights groups, with copyright holders voicing their support.
More details on the consultation, including all questions, are available in the Copyright Office’s official announcement published a few days ago.