Addressing Fair Use Rhetoric in Debate Over SMART Act

On March 18th, Senators Tillis and Leahy of the IP Subcommittee introduced the SMART Copyright Act. The major functions of the bill, as codified in a proposed new Section 514, would empower the Librarian of Congress to approve designated technical measures (DTM) for identifying infringing material via a triennial rulemaking process. For a detailed description of the proposed rules and remedies in the bill, see Copyright Alliance CEO Keith Kupferschmid’s post. In this post, I wanted to respond to one criticism of technical measures for copyright enforcement—namely that they cannot account for fair use—but first, a recap of the background.

The SMART Act is a legislative response to the fact that after almost 25 years, the OSPs have rarely held up their end of the bargain under the terms of the Digital Millennium Copyright Act (DMCA), ratified in 1998. The foundation for all of Section 512 was predicated on the argument by the service providers of that period that they needed a liability shield against civil litigation stemming from the inevitability that customers would post copyright infringing material to their platforms. Thus, the statute lays out the conditions under which a platform can maintain the “safe harbor” shield, and as many copyright owners know, the major OSPs since then have not always complied with these conditions in good faith.

For the past quarter century, the major platforms have consistently avoided compliance with the notice-and-takedown process by, for instance, erecting unnecessary roadblocks for copyright owners to submit requests. Or, as a Virginia federal court recently affirmed, COX Communications remains on the hook for a billion-dollar damage award due to its failure to comply with the DMCA condition requiring the removal of repeat infringers.

These and many other examples paint a picture of a service platform industry that has fostered a culture of turning a blind eye to infringement and a reluctant, scattershot compliance with the statues they themselves lobbied to write. But specifically in regard to §512(i), which requires collaboration with copyright owners to develop standard technical measures (STMs) for identifying infringing material, Big Tech straight-up ghosted on the matter.

Remember that when the DMCA was being debated and drafted, it was the OSPs who presented their own technological capabilities as an implied promise that STMs could be developed to identify and remove infringing material. But not only did those service providers, and the bigger ones who followed, never engage with copyright owners to develop technical measures, they also funded a network of organizations (you know their names)[1] to promote the general theme that online copyright enforcement is fundamentally bad for society.

Kevin Madigan, VP, Policy and/ Copyright Counsel at Copyright Alliance, describes in a new post how The Network predictably repeats the same unfounded talking points no matter what proposal is on the table. And they have certainly dragged these orcs out of the mud once again in response to the SMART Act. But even as we examine the pros and cons of the bill itself, we should not lose sight of the fact that SMART is a legislative response to the OSPs’ refusal to comply with the conditions their own industry negotiated in the days of Web 1.0. So, maybe we can put the hyperbole in the drawer and sit down like adults? I wouldn’t hold my breath.

Technical Measures Can Never Account for Fair Use?

One gremlin The Network likes to call upon whenever technical measures are discussed for identifying infringing material is that an algorithm can never identify fair use. It is an oddly defeatist argument coming from representatives for an industry that makes bold promises about AI, and hardly allows the lack of perfection to stop them from experimenting with new products. But even if it is true that no algorithm could ever account for fair use, I’ll be blunt and say that neither can most of the platform users The Network claims to represent.

Let’s be real. The minority of professional creators who endeavor to be informed and engaged on copyright matters struggle with fair use; the experts who have worked in copyright law their entire careers struggle with fair use; and the courts struggle with fair use. Naturally, The Network exploits this uncertain landscape to imply that we could never hope for an algorithm to get fair use right. But this logical leap, which is meant to end discussion, also obscures the fact that the average social platform user doesn’t get fair use right either. That is if he even considers the question at all.

The term fair use is bandied about by The Network to promote the idea that it is the default status of most uses of protected works. It is a rhetorical strategy that, when paired with the message that copyright enforcement is inherently a form of censorship, promotes an ideological agenda seeking to elevate the fair use exception to the status of a civil right. But although it is true that the fair use doctrine evolved in U.S. law partly in support of the speech right, it remains an affirmative defense to a claim of copyright infringement. And the distinction matters.

Not only does The Network consistently ignore the literal First Amendment safeguards in the DMCA (which would not be disturbed by the SMART Act), but when they assert that no AI could ever account for fair use, I suspect they are alluding to a much larger constellation of presumed fair uses than actually exists. In other words, the argument against STMs, on the basis of fair use, almost certainly encompasses the effort to expand the volume and types of uses that copyright critics believe should be excepted under the doctrine.

I cannot prove this assumption and would not claim that, if true, it necessarily simplifies the technological challenge at hand. But it if we are going to take the matter seriously at all, it is important to know which definition of “fair use” is being applied—one grounded in case law, or one which the copyright critics would like to revise as they see fit?

As a practical matter, if the average user of a protected work on a social platform makes a fair use of that work, it is more likely the result of dumb luck than a well-informed and carefully considered decision. This is a common-sense assumption based on the low probability that the average user knows anything about the fair use doctrine. And if that is not correct, then perhaps the entire foundation for the liability shield codified in Section 512 should be reconsidered. Because the premise for this whole conversation was, and remains, that the average user of the internet does not know much of anything about copyright law.

Moreover, we forget that the presumed neutrality of the service provider is in contradiction with the idea that a fair use analysis should be a component of technical measures in the first place. The role of platform management was anticipated by the DMCA to be somewhat deaf and dumb in the process. Infringing material would be removed upon receipt of a valid notice, and if the uploader of the material believed the use to be a fair use, he could file a counter-notice to that effect. The human actors on the two sides of this equation were always anticipated to play active roles, and although The Network insists that the low rate of counter-notice filing is predicated on fear alone, it is also plausible that it is the result of many uses of works that are not defensibly fair uses.

What know for sure is that tens of millions of infringing uses occur every day and that only the large, corporate copyright owners have anything close to the resources necessary to mitigate the scope of piracy online. Large platforms like YouTube have deployed their own technical measures (e. g., Content ID and Copyright Match) insofar as they serve the platform’s bottom line. But these systems do little or nothing for independent and small business creators, and leaving this class of professionals in the digital dust was not the intent of the DMCA. Whether some version of the SMART Act can address the problem remains to be seen. But these rhetorical arguments against even trying are as tedious as they are hollow.

[1] In case you don’t, the Electronic Frontier Foundation, PublicKnowledge, Re:Create Coalition, Fight for the Future, Library Copyright Alliance, Authors Alliance, and a host of legal academics.

Image source by: idaakerblom

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