In recent years, we have seen a number of legislative efforts brought forward that were introduced as anti-piracy measures, but whose design would go far beyond addressing copyright infringement, leading to significant censorship online.

The SMART Copyright Act of 2022 introduced in the Senate seeks to require new technology measures to act as a filter to prevent infringing content online. It’s unclear why this bill is necessary: the Digital Millenium Copyright Act already requires internet companies to have technological measures in place to address issues of copyright infringement. As the Library Copyright Alliance points out, civil and criminal penalties for violating rights holders’ technological prevention measures or trafficking in devices that enable circumvention of those measures already exist. Current law also prohibits the altering or removal of copyright management information from content. With these existing laws, it’s unclear why new, standardized technology is necessary.

This legislation could also disturb what’s already an uneasy balance between rights holders and content creators online. During COVID-19, our music communities relied entirely on the internet to share and collaborate on their art. However, even classical musicians found existing copyright management systems like those on Youtube and Facebook getting in their way of sharing work from the public domain

These kinds of erroneous copyright notices are harming musicians’ ability to legally share their work and legally monetize their labor. For scholars and artists who rely on transformative fair uses of copyrighted material, automated filters increase the chances that their work will be flagged as infringing. As the EFF points out, computers can’t judge the difference between criticism, parody, and infringement

Youtube copyright claim for three different copyrighted sound recordings on a student performance of the public domain “Im wunderschönen Monat Mai from Dichterliebe” by Schumann

Not only would this proposed legislation impact the communities we serve, but it also will impact libraries. While the proposed legislation does give the Librarian of Congress the ability to exempt libraries and archives, an exemption is still required. Just as libraries are finding clarity in ways to share our rich music collections from the Music Modernization Act, we could find ourselves having to implement technology filters that could pre-empt our legal sharing of those collections. 

The act also calls for this technology to be revisited and potentially changed every three years. Libraries are already faced with changes to policy and access every three years through the DMCA 1201 rulemaking process, which often impacts the ways we can legally share materials from our collections in teaching and research. This new law would add an additional burden on our institutions and create significant, ongoing uncertainty about how we can achieve our mission under the law.

The efforts of the Copyright Office would be better served by continuing to work on expanding how their data is accessed and deployed by individual platforms and providers to ensure that we see fewer barriers to sharing the public domain and have less uncertainty about legally sharing collections. 

On Monday, April 25th, we invite MLA members to join in sending a message to our legislators that the SMART Copyright Act is not the best path to addressing issues of online infringement. Join our colleagues at Electronic Frontier Foundation, Public Knowledge, the Internet Archive, and the Library Copyright Alliance in opposing these efforts to create new censorship tools online.

Individuals can share their views by signing existing petitions, writing your congress persons, and joining efforts on Twitter on April 25 to raise awareness about this issue.

-Music Library Association Legislation Committee