1. The U.S. Copyright Office’s Own Report States Need For Stakeholder Discussion and Consensus
In May 2020, the Copyright Office issued a report on its 5-year study of the DMCA’s Section 512. On technical measures, the Copyright Office concluded: “Regardless of any future congressional action on section 512(i), the development of STMs depends upon voluntary collaboration and consultation within and across industries.” The report was the result of a multi-year stakeholder engagement process and recognized the range of voluntary collaborations and technical measures already being used to combat privacy.
2. The Copyright Is Already Undergoing A Two-Year Technical Mandate Review
As a result of that same 2020 report, Senators Leahy and Tillis already requested that the Copyright Office “convene a representative working group of relevant stakeholders to achieve the identification and implementation of technical measures” in June 2021. Per this request, the Copyright Office just launched the first in a series of public plenary sessions on technical mandates in February which quickly revealed there is no consensus approach. This process should be completed to help inform any legislative proposals, as the cosponsors requested.
3. The Copyright Office’s Top Priority Must Continue To Be Modernization
When first nominated, Dr. Carla Hayden was hailed for the experience she would bring to help with the Library’s overdue modernization efforts. Shortly after her confirmation, Dr. Hayden told a Congressional Committee: “Also high on my priority list is modernization of the Copyright Office. It must be accessible to its users; registration must be user-friendly; and a searchable database of copyright holders should be available. These improvements will make an enormous difference to this important segment of the American economy.” This prioritization follows a 2015 Government Accountability Office report that found the Library faced “serious weaknesses in managing information technology.”
4. A Waste Of Already-Limited Resources
The 2015 Government Accountability Office report also found that the Library of Congress mismanaged millions of dollars. By introducing their technical mandates bill now (less than a month after the Copyright Office launched the first public plenary session they requested) Senators Tillis and Leahy are misusing the office’s strained staff time and resources. Furthermore, the legislation calls for an entirely new triennial process to evaluate how the internet works, when the Section 1201 triennial process is already considered a waste of government resources.
5. Filtering Mandates Are Beyond The Scope Of U.S. Copyright Laws
The mission of the U.S. Copyright Office is to promote creativity and free expression, but S. 3880 will force the office to do the exact opposite. Technical mandates handed down by government lawyers without technical expertise or oversight will result in content filtering – stifling creativity, innovation, and the flow of information.