How Smart is the SMART Copyright Act? – Diff

"During March 2022, United States Senators Patrick Leahy and Thom Tillis introduced the Strengthening Measures to Advance Rights Technologies Copyright Act of 2022 (SMART Copyright Act). The bill is deceptively simple. It would require the Library of Congress to mandate that online platforms use certain “technical measures” (i.e., automated systems) to identify infringing content. Its simplicity masks its dangers, however. For that reason, though the Wikimedia Foundation agrees that technical measures to identify potentially infringing works can be useful in some circumstances, we sent a letter (reproduced below) on 19th April 2022 to the bill’s sponsors letting them know that we oppose it.  Under the SMART Copyright Act, the Foundation and Wikimedia communities could be forced to accommodate and implement technical tools to identify and manage copyrighted content that may not be right for Wikimedia projects. This requirement could force the Foundation to change its existing copyright review process, even though the current process is working very well. ... While we fully agree that tools can be a helpful aid in identifying infringement, they should not be considered as a fix for all enforcement problems. There are two main reasons for this: Technical tools are not good at determining when a work was “fairly used” or when a work has entered the public domain. This flaw leads to inappropriate censorship. Even YouTube’s Content ID identifies numerous false positives for infringement, and fails to catch a significant amount of problematic content. We worry that such tools would do far worse than the Wikipedia non-free content policy enforced by users. Technical tools are often developed and owned by one company, and are not open source or freely available. If specific tools are mandated by the copyright office, this would make it difficult for smaller companies and nonprofits to use them without becoming overly reliant on those companies...."