Under the DMCA, an online platform receives legal immunity from copyright infringements on its websites, provided that it meets certain conditions. One such condition is that platform "accommodates and does not interfere with standard technical measures." STMs are technologies that are "used by copyright owners to identify or protect copyrighted works," that have been "developed pursuant to a broad consensus of copyright owners and service providers" in an "open, fair, voluntary, multi-industry standards process," that are made available on reasonable and non-discriminatory terms, and that do not impose substantial costs or burdens on online platforms.
But the problem with Section 512(i) is that it has never worked. As the Copyright Office's report acknowledges, no technology has ever been designated an STM under the law. Online platforms continue to receive the benefit of legal immunity for infringements on their sites without having to accommodate any STMs – because there are no STMs.
In its report, the Copyright Office recommended that Congress amend Section 512(i) by: (1) clarifying that terms broad consensus and multi-industry "require substantial agreement, but not unanimity, and only of those industries directly affected by an STM"; (2) replacing "developed" with "designated" in order to confirm that they qualify if they're designated by broad consensus of copyright owners and online platforms, even if they originally were developed by a narrower subset of stakeholders or emerged through proprietary processes; and (3) list factors for weighing whether particular measure imposes substantial costs and burdens on service providers. The Copyright Office concluded that these amendments to the law could help facilitate Section 512(i) and thus give the provision a better chance at finally working. Congress should take up the Copyright Office's recommendation and make those changes to the law.
The Copyright Office stopped short of recommending that Congress amend Section 512(i) by establishing an administrative process by which the Office would recognize designated technological measures (DTMs). Online platforms would be required to accommodate and not interfere with DTMs as a condition for receiving legal immunity for copyright infringement. Such an administrative process would serve as a supplemental or alternative approach to the current, unsuccessful voluntary process for STMs. The report raised staffing and resource concerns with a DTM process.
But Congress shouldn't let the Office's report be the last word on DTMs. The idea of a establishing a DTM process within the Office has merit and deserves further attention by Congress. DTMs were the subject of my April 2022 Perspective from FSF Scholars, "SMART Act Would Help Prevent Online Copyright Infringement." The SMART Act, which was introduced in the Senate and in the House of Representatives last year, would have authorized the Copyright Office to recognize DTMs. The SMART Act ought to be reintroduced in the 118th Congress and hearings should be held on DTMs in order to give the proposal the full consideration that it deserves.
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