The following statement is attributed to Kate Tummarello, Executive Director of Engine, regarding last week’s introduction The Strengthening Measures to Advance Rights Technologies Copyright Act of 2022:
Statement:
“The Strengthening Measures to Advance Rights Technologies Copyright Act of 2022 is a deeply troubling proposal that would make it much more expensive and risky for startups to host user-generated content—anything from comments and reviews, to podcasts and original artwork. While the bill is ostensibly aimed at well-resourced Internet platforms, it proposes changes to copyright law that would tee up a complex and costly compliance framework for the scores of Internet startups that encounter user-generated content, in turn, restricting opportunities for innovation, competition, and expression online.”
Background:
The Strengthening Measures to Advance Rights Technologies Copyright Act of 2022 would amend § 512 of the Digital Millennium Copyright Act (DMCA)—to expand the universe of technical measures Internet startups have to deploy and create a new class of rulemaking, requirements, and lawsuits that startups would have to navigate. At present, the DMCA lays out a relatively clear and balanced framework: companies that comply with the law’s requirements—like implementing notice-and-takedown systems—are not supposed to be automatically liable for (alleged) copyright infringement that the company has no knowledge of or involvement in. This framework is especially valuable for the vast majority of startups that host content but see little to no infringement and lack the resources to review each user’s posts.
The bill introduced last week would make several substantial changes. First, it would redefine “standard technical measures”—which are (currently) those “used by copyright owners to identify or protect copyrighted works” and which online service providers are expected to accommodate. Instead, the bill would condition DMCA safe harbor eligibility on companies affirmatively adopting certain copyright management technologies. And it would shift the expectation towards forcing startups to purchase or build and maintain things like upload filters.
Second, the bill authorizes the Copyright Office to create a new class of “designated technical measures.” These would be different technologies, selected by the Copyright Office, that online service providers would have to adopt. And then if a company failed to deploy the right technologies, they could face private lawsuits and hefty damages even if there were never any instances of alleged infringement on the service.
These changes would create new barriers for entry and could quickly discourage investors from funding early-stage online service providers. And while large, established platforms already use very expensive, sophisticated screening technology to try and identify potential infringement, statutory changes forcing adoption of such technology would disproportionately impact startups and smaller platforms.
Finally, it is concerning that in an election year, when the Senate is “already bursting with last-minute legislative priorities,” one of the bill’s co-sponsors is looking to ensure it “is enacted into law this Congress.” Just last month, the Copyright Office received thousands of public comments complaining about the type of technology contemplated by last week’s bill. These are extremely important issues for the economy and freedom of expression, not the type of legislative proposals that can be jammed through without full consideration and vetting.
