After a consultation started last February, the American Copyright Office has just published a report and recommendations on the choices to be made in the fight against piracy. He warns against technological drifts that could harm fundamental rights.
On the one hand, the evil of an era, online piracy, in all its forms, and the ensuing struggle. On the other, a fundamental right, freedom of expression. At first glance, the two concepts seem to have nothing in common, and yet…
A DMCA that is starting to date…
In the United States, the protection of copyrights online is ensured by a famous text, the Digital Millennium Copyright Act, more commonly known as the DMCA. An American law, of course, but the repercussions of which go well beyond the United States borders and set the pace in many countries.
However, this law was passed in 1998, when the Net was slowly opening up to the general public. Suffice to say that in almost a quarter of a century, the digital world has changed enormously, with the appearance of streaming video platforms, with the rise of cyber lockerslike Megaupload in its time, Hotfile, or Mega now, or with the use of various and varied social networks as means of dispersing access to pirated content.
The result of a public consultation
It is in this context, and to satisfy increasingly formal and numerous requests from anti-piracy lobbies and legislators, such as Senators Patrick Leahy, Democrat, and Thom Tillis, Republican, that the United States Copyright Office has opened, a few months ago, a public consultation on the technical measures to identify and take to fight against online copyright infringements. The goal was to figure out which way to go: new law, DMCA amendments, etc.
Launched last February, this consultation received the participation of many actors, coming from different backgrounds and having very diverse positions in relation to the multiple technological options that can be envisaged to fight against piracy. Options divided into two categories: voluntary technical measures and standard technical measures.
Particular attention has been paid to automated solutions, in particular those known as upload filtersand which prevent the (re)posting of pirated content.
These tools imply either a willingness on the part of the players to put them in place, or a legal obligation to comply with them.
Representatives of rights holders are obviously in favor of a tougher tone and tools, with government-backed anti-piracy measures and new laws. Remember that the DMCA can be amended with new measures if they receive a “broad consensus”. Which has never happened in the last twenty years. This is how the different players found themselves developing their own tools, each on their own, such as the Content IDfrom YouTube.
A fundamental disagreement, freedom of expression threatened
Faced with this state of affairs, which does not curb piracy, the rights holders had the opportunity to express their frustration during the consultation. However, the conclusions of the Copyright Office are much more cautious.
“While the comments shared some common themes, we observed a lack of consensus on the contribution of standard technical measures and strong disagreement about proposals for new laws or regulatory actions. »explains theOffice in a letter sent to the two senators.
Because, during the consultation, the upload filters sparked a real outcry in the United States. On the one hand, as indicated in the report by the Federal Office “a single approach for all cases for the application of technical measures” is not conceivable. On the other hand, critics of these tools argue that it is a priori censorship, a means of preventing freedom of expression.
Because, and this is an observation shared by all contributors as a general rule, the technology is not 100% reliable. In other words, these tools could just as well block pirated content as content benefiting from the fair use or an original creation mistaken for protected content.
In its final report, the Federal Bureau echoes its strong reluctance and highlights the serious risks for freedom of expression online if such technological solutions were put in place.
Ultimately, without making a proposal for voluntary technical measures, the Office recommends avoiding too radical decisions and instead moving towards adjustments to the DMCA. Thus, the slight modification of the definition of standard technical measures could allow an easier implementation of certain tools. For example, the clarification of section 512 which refers to the notions of “broad consensus” and of “multi-industry” could help in the fight against piracy, without necessarily harming freedom of expression. The office indicates that it could be specified that only the industries concerned must reach an agreement, for example.
It remains to be seen what the legislators will do with this report and these proposals. This more moderate position is indeed quite far from the proposals of Senators Leahy and Tills, who introduced their SMART Copyright Act to combat piracy, without worrying too much about the technical means used and their effects on fundamental freedoms…
TorrentFreak
