Why The Internet Archive Joined The Opposition To The SMART Copyright Act

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Some of the biggest debates about free speech and copyright law tend to happen quietly. The Internet Archive recently voiced opposition against the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022. The Internet Archive joined a group that is deeply concerned about the potential impact of the act on access to information.

First, what is the SMART Copyright Act? The act was introduced by Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) in late March. Its intention is to “to define and provide for accommodation and designation of technical measures to identify, protect, or manage copyrighted works, and for other purposes.” It would allow the Librarian of Congress to designate standardized protection measures (STMs) that would need to be adopted by online “service providers.” The chosen STMs would automatically filter out material that was allegedly infringing copyrighted material. These STMs would also need to legally be adopted by all online “service providers.”

Why do institutions like the Internet Archive, a group that is dedicated to offering access to materials in the public domain, oppose the SMART Copyright Act? First, the act would force online service providers to purchase and implement the STMs at their own expense. The costs of such STMs may not be a major deal to a large tech corporation, but could hurt small local libraries and other nonprofits.

Second, the Internet Archive noted, “lobbyists and lawyers for the owners of these technologies would be allowed to petition the Copyright Office to require the adoption of their own products. These lobbyists and lawyers will advocate for the companies they represent, not necessarily the protection of copyrighted materials. To top it off, as noted by the Author’s Alliance, “it is unclear that the Copyright Office possesses the technical expertise to evaluate and implement STMs.” Online service providers may be forced to use ineffective STMs.

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The act would also lead to “endless triennial litigation cycles” that could do more harm than good. Organizations are much more easily able to adapt to the ever-changing and “diverse” requirements of the internet on their own. The adopted STMs may quickly become irrelevant and there would be no opportunity to change them until they were again reviewed by the Librarian of Congress.

Next, there is worry that such STMs could actually negatively impact both authors and consumers. Internet Archive cited Professor Eric Goldman’s (Santa Clara University School of Law) argument that the act is a “thinly veiled proxy war over mandatory filtering of copyrighted works… mandatory filters are error-prone in ways that hurt consumers, and they raise entry barriers in ways that reduce competition.”

There is a strong concern that the act could open the door to censorship as well. Nonprofit Public Knowledge stated that the bill would “force digital platforms and websites to implement technical measures that monitor all content that users upload, automatically scrutinizing everything we write, create, and upload online for the sake of copyright protection.” Internet Archive compared the act to similar ones in the United Kingdom and Canada that “restrain free expression online.”

Last, there is an issue that is not directly mentioned by the Internet Archive—most reputable online service providers already diligently follow copyright laws. These institutions either only offer material that is in the public domain or pay millions of dollars to publishers and other organizations to legally offer copyrighted materials to consumers. The act harms those already following the law and does little to actually prevent legitimate copyright infringement.

The Internet Archive concludes that the “bill and its supporters do not represent the public’s interest in fair copyright policy and a robust and accessible public domain.” It believes there are better uses of the Copyright Office’s time that would prevent copyright infringement and benefit Americans. It is uncertain at the moment whether the act will pass but what is clear is that there is substantial opposition to it from groups that it would supposedly help.