from the lying-liars dept
We’ve talked about the many, many problems of the “SMART Copyright Act” from Senators Thom Tillis and Pat Leahy, and highlighted how a ton of public interest groups, academics, companies, and more have spoken out against the bill. Perhaps realizing that their dream of sneaking through legislation that will mandate upload filters is facing a slightly rockier road than they hoped, the various legacy copyright industry lobbyists all got together and put together their own letter in support of the bill. Except, the letter is not just wrong, it seems to deliberately lie to Senators Leahy and Tillis. The letter appears to have been put together by the Copyright Alliance, one of a number of groups organized by the largest legacy copyright providers, but they got all the usual suspects to sign on: the RIAA, the MPA, ASCAP, IFTA, NMPA, SGA, DGA, the Authors Guild and more.
The list is impressive and many of those lobbyists represent the organizations that exploit creative people of all kinds — but that’s no excuse for them to be creative with the facts. And yet, they are creatively lying to Tillis and Leahy.
Specifically, the second paragraph of the letter says the following:
The Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022 addresses one of the major failures of the DMCA: the fact that, after nearly twenty years, not one “Standard Technical Measure” has been officially identified as Congress originally intended and expected to occur. We applaud your effort to breathe new life into what the Copyright Office recently identified as the “untapped potential” of STMs.
That link to “recently identified” is to the Copyright Office report that came out back in May of 2020. Back when that report first came out, we had raised many concerns about it, because it already made some pretty embarrassing mistakes. However, it’s important to note that even in a report as biased towards the legacy industry’s views as it was, the report does not support what the lobbyists are saying in this letter.
Did the Copyright Office suggest that Congress should breathe new life into the “untapped potential” of STMs? Nope. The Copyright Office (again, in a report that HEAVILY favors the legacy copyright industry’s narratives) does talk about untapped potential, but explicitly says that potential is not in regulations from Congress. Indeed, the report’s reference to “untapped” potential is explicitly for non-statutory approaches:
In addition to the foregoing list of approaches that Congress may wish to consider, the Copyright Office notes that there is untapped potential for additional approaches that would not require congressional intervention
Huh. So the Copyright Office notes there’s untapped potential that would not require congressional intervention, and the legacy copyright lobbyists run to Congress to say that supports congressional intervention. How… interesting.
Perhaps they meant somewhere else in the report that the Copyright Office referred to “untapped potential” of STMs? Well, “untapped potential” (which, again, these lobbyists used in quotes, suggesting a direct quotation of the Copyright Office) appears four times in the report. Not once is it referring to (1) standard technical measures, or (2) congressional action.
The second mention is talking about Section 512(j), which has to do with injunctions, and not 512(i) which is about STMs. So that can’t be it. The third mention of untapped potential is again explicitly in a section about non-statutory approaches (i.e., those that don’t involve congressional intervention):
In particular, the Office notes that there is some degree of untapped potential in various nonstatutory approaches to mitigating the limitations of section 512. There are hurdles to effectively implementing such measures, of course. And in many cases, a measure that relies upon voluntary cooperation between parties will primarily benefit those parties large enough to pose a credible litigation threat in the absence of such cooperation
Huh. So, again, they’re talking about “untapped potential” for voluntary cooperation and not a new law from Congress. And this section isn’t about STMs either. It’s about the notice-and-takedown process. So, that can’t be it. That’s now three out of four. Let’s look at the 4th one.
Finally, finally, this one actually is about standard technical measures. But, uh, oh:
The Office also recommends several non-statutory areas of untapped potential to increase the efficacy of the section 512 system and recommends additional stakeholder and government focus in the areas of education, voluntary cooperation, and the use of standard technical measures.
Ooops. The Copyright Office is talking about STMs here, but the “untapped potential” it discusses is not having Congress create a law, but rather non-statutory approaches, including “education” and “voluntary cooperation.”
So why, exactly, would the Copyright Alliance, with an assist from the RIAA, MPA, and all those other groups just flat out misrepresent what the Copyright Office said in a report that was already extraordinarily favorable to their interests?
Well, perhaps because they’ve spent decades misrepresenting things to Congress in order to get their way, so now it’s just baked in that they’ll say whatever they want to say and hope that no one will ever check.
But some of us are going to check.
Meanwhile, much of the rest of their letter is utter nonsense too.
Critics wrongly claim the bill introduces new technology mandates – a distortion of your legislation, which includes no standards or mandates. The SMART Copyright Act simply creates a process by which expert agencies can gather information, vet ideas through rigorous and transparent processes, and engage stakeholders in identifying antipiracy approaches that have proven safe, practical, and effective in the marketplace.
Critics wrongly claim that the bill introduces technology mandates, when all it really does is introduce the process by which we will get our technology mandates.
Indeed, the fact that these lobbyists are lying their way forward in support of this bill debunks this very paragraph as well. For all their talk of “rigorous and transparent processes,” the legacy copyright players, led by the likes of the Copyright Alliance, the RIAA, and the MPA, have zero compunction about lying and misrepresenting things to get their way. They want this “process” so they can get their upload filter mandate, and then brush off any legitimate concerns by saying “but the process was “rigorous and transparent.”
That’s wrong. The process is rigged and you have players, like the Copyright Alliance, that have zero compunction about misrepresenting things and pretending that others like the Copyright Office support their views. That fits right in with Tillis, who pretended that Creative Commons supported this bill when it did not, but it’s no way to craft laws that anyone will respect.
Filed Under: copyright, copyright office, misrepresentations, smart copyright act, standard technical measures, untapped potential
Companies: copyright alliance, mpa, riaa