Election Year Fight Looms Over Copyright Legislation; Issues Reflect Creators’ Concerns and Industry Biases

Are internet content aggregators little more than public utilities or must they take a more active part in combating fake news and hate speech carried on their networks? Are they doing enough to police digital theft?

These are among the themes that are likely to play a role in the upcoming mid-term elections.

The summary below of proposed copyright legislation that is likely to be impacted by the upcoming mid-term elections was compiled from sources that include Politico, Digital Music News, Rolling Stone and the Electronic Frontier Foundation.

When ‘Free’ Speech Leads to Hate Speech

SENATE STARTS ELECTION-YEAR FIGHT OVER ONLINE COPYRIGHT: New bipartisan legislation from Senators Thom Tillis (R-N.C.) and Patrick Leahy (D-Vt.), the chair of the Senate Judiciary subcommittee on intellectual property, would be the first major overhaul of online copyright law in nearly a quarter century.

The SMART Copyright Act (S. 3880) (“Strengthening Measures to Advance Rights Technologies Copyright Act of 2022”), introduced in March, promises to pit tech platforms and independent content creators against the music and movie industries. But since it’s being rolled out just months before November’s election, its potential to pass this legislative cycle is doubtful at best — and Leahy’s retirement in January means Tillis will need to find a new cosponsor if the effort slips into next cycle.

Senators Introduce the Bipartisan ‘SMART Copyright Act,’ Claiming That the Bill ‘Would Hold Tech Accountable’

DMCA overhaul: The bill would make major changes to the Digital Millennium Copyright Act (H.R. 2281(105)), a 1998 law that updated copyright rules for the early internet age. Among other things, the DMCA provides tech platforms with “safe harbor” protections that shield them from lawsuits as long as they work to remove or block access to infringing materials — pirated movies or songs posted on YouTube, for example.

Those protections are similar to those found in Section 230 of the Communications Decency Act — and the DMCA’s “safe harbor” protections have garnered the same kinds of criticism Section 230 has received in recent years.

Discouraging On-line Piracy

Tech’s (other) legal shield under threat. Among other things, the legislation would create new legal liability for tech platforms if they interfere with or fail to accommodate new government-mandated measures designed to crack down on online piracy, to be created after the bill’s passage.

A long campaign. The SMART Copyright Act is the culmination of a yearslong effort by Tillis to overhaul the DMCA — something the major tech platforms have successfully blocked in the past. And the tech industry, aided by independent video or music creators who at times run afoul of zealous copyright enforcement, is already gearing up to oppose this latest attempt.

“This bill is very dangerous,” said Joshua Lamel, the head of the Re:Create Coalition, which includes among its members tech lobbying groups like the pro-tech Computer Communications and Industry Association and the Consumer Technology Association. In a statement, Lamel said new government-mandated technical standards for copyright violations “will result in content filtering — stifling creativity, innovation and the flow of information.”

But the music and movie lobbies are excited about the new bill. Mitch Glazier, the head of the Recording Industry Association of America, said the SMART Copyright Act “will incentivize the development and adoption of effective tools to address online piracy while giving platforms clarity.” Patrick Kilcur, the Motion Picture Association’s head of U.S. government affairs, thanked Tillis and Leahy for their work to prevent digital theft.

A path forward? The SMART Copyright Act is likely to face a difficult route to passage, in a Senate already bursting with last-minute legislative priorities to complete ahead of the midterm campaign season. There’s also so far been no companion bill introduced in the House.

Bi-Partisan Effort

But Tillis spokesperson Adam Webb said the senator “intends to work with Senator Leahy, [Senate Judiciary] Chair [Dick] Durbin (D-Ill.), and Senate leadership to ensure the SMART Copyright Act is enacted into law this Congress.”

Webb said Tillis is encouraged that lawmakers from both parties “realize that big tech companies and platforms must do more to combat property theft.”

Images source: SenateRPC

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