For several years, U.S. lawmakers have considered options to update the DMCA so it can more effectively deal with today’s online copyright issues.
Many proposals have come and gone, without resulting in any significant legislative update. That could change in the near future.
Following repeated nudges from Senators Thom Tillis and Patrick Leahy, the U.S. Copyright Office started looking into automated tools that online services can deploy to ensure that pirated content can’t be easily reuploaded.
Mandatory Technical Protection Tools
This “takedown and staydown’ approach would rely on Standard Technical Measures (STMs), a range of tools that includes upload filters. This is a sensitive topic as became clear from the massive response to a public consultation published earlier this year.
A few weeks ago the Copyright Office launched a follow-up consultation. This time, it asked the public whether it’s wise to make certain anti-piracy tools mandatory under the DMCA. This is what’s currently being proposed in the SMART Copyright Act of 2022.
As expected, the consultation triggered a wide variety of responses. Several copyright holder groups are backing a proposal to make protection measures mandatory but most of the online services and platforms that would be required to filter content are fiercely opposed.
Reddit Warns Against Filters
As one of the most popular user-submitted content sites on the internet today, Reddit falls in the latter camp. The company says that mandatory filters would severely harm free expression and creativity.
“Filtering technologies and STMs ill-suited to the variety of content on Reddit would limit the vitality of some of our platform’s most active communities,” Reddit informs the Copyright Office.
Reddit hosts thousands of large and vibrant communities that are centered around a wide range of topics. Many of these use copyrighted content in a fair use context, ranging from memes, through news and commentary, to research.
Trying to automatically filter out potentially infringing content will simply create a mess, Reddit’s submission points out.
“Filtering technologies have difficulty merely identifying copyrighted material, let alone assessing the specific context the content was found. They cannot make nuanced judgments about fair use or transformative works.”
Overblocking and False Positives
Reddit fears that automated filters will lead to false positives and overblocking, which will directly harm free expression on the platform. These major drawbacks for the public at large trump any benefits rightsholders may see, Reddit warns.
“As a result, standardized measures are likely to remove non-infringing content and suffer from false positives. Worse, these over-removals would strike at the heart of the transformative user-generated content that makes Reddit communities unique.
“That is a severe, unnecessary, and unacceptable cost to the free expression of our users and the communities they build,” Reddit adds.
The social community platform is not alone in its criticism. Other organizations also point out that mandatory protection measures will likely do more harm than good. These include Amazon, the EFF, Google, Wikipedia, the BSA, US Telecom, and many others.
Content-ID Doesn’t Work (for everyone)
Some of the respondents agree that it may make sense for some services to use upload filters. Google, for example, stresses that it has developed a wide range of custom anti-piracy measures, including YouTube’s Content ID system.
However, these solutions may not work for other platforms so making a specific solution mandatory is not advised.
“Because there is such a broad and diverse set of OSPs of all different sizes and types, a one-size-fits-all approach will not work and would stifle further innovation in this space,” Google notes.
This point is also made by Reddit, which stresses that a Content ID style system won’t work on all platforms. In fact, it is far from flawless on YouTube’s own service.
“Despite being crafted internally for YouTube’s specific purposes, complaints abound about the unfairness of the program from user advocacy groups regarding the rate of false positives. Content ID has even been weaponized by bad actors to remove videos that provide newsworthy, non-infringing content of vital civic importance,” Reddit notes.
All in all, Reddit urges the Copyright Office to keep these and other concerns in mind while it considers the best path forward.
“When technology and the law leave room for creativity, they allow people to create wonderful things and build positive communities. When they restrict that creativity, it becomes that much harder for people to unite to build fun, enriching communities,” Reddit concludes.