I'm a bit confused as to how this even solves anything to do with piracy even if you take the RIAA's side. Youtube et al already have incredibly aggressive copyright filters. I can't actually think of a major media platform that is based in the US sphere of influence that lacks those filters. At best this sounds like reinventing what already exists, but with more bureaucracy.
I'm also confused as to how anybody expects to create an upload filter system that respects fair use, given how subjective the fair use criteria are. We have already have seen how this works out with sites like YouTube - it simply does not work.
I'm triply confused as to how this interacts with the DMCA safe harbor provisions. If this doesn't override them, as the bill authors say, how does it accomplish anything? Even The Pirate Bay nominally accepts DMCA takedown requests - so if sites can continue with their existing DMCA processes and be safe from being sued, why would anybody bother with implementing the technical measures?
> At best this sounds like reinventing what already exists, but with more bureaucracy.
in the absence of an effective predator to bureaucracy besides corruption and more bureaucracy, that's all you get- in other words, you can't stop progress!
The expectation is that fair use, if considered at all, is almost wholly up to rightsholders. Ideally (as is the case on platforms like YouTube) you allow this control to take place well before any legal mechanisms come into play, such that there is no legal recourse.
> I'm also confused as to how anybody expects to create an upload filter system that respects fair use, given how subjective the fair use criteria are. We have already have seen how this works out with sites like YouTube - it simply does not work.
The groups that want this do not like fair use, either. In their ideal world, fair use wouldn't exist and you'd go to prison the second you opened a BitTorrent client.
YouTube has aggressive copyright filters, but only for a specific set of vetted major media owners. The system is actually intended to take copyright disputes outside of the law and let Google negotiate a backdoor license with whatever company they think has the strongest claim to ownership over the content. The average YouTuber is not treated like a copyright owner in this arrangement, and has very limited tools to go after infringing reuploads of their own content.
Furthermore, there's plenty of other services that don't have a Content ID solution, are under the DMCA 512 safe harbor, and still have enormous amounts of infringing material, because the current notice-and-takedown regime puts all the onus of enforcement on the copyright owner. Speaking of, at one point, Google would not service automated search requests, and would comply with takedowns by... linking the user to the takedown request, which has the infringing link on it. Don't ask me how that is actually within the safe harbor.
The underlying problem is that DMCA 512 is underspecified; it just says you need to take down content when asked and put it back up if the uploader is willing to dox themselves. It does not say how the company goes about taking down content. SMART would change it so the Copyright Office determines how far any company has to go in complying with a takedown notice. If they say "video sites need a perceptual hash upload filter", then any site that hosts video and doesn't have said filters is outside of their safe harbor.
The solution to fair use under DMCA 512 is to tell the complainant to sue you and hand them a service address. I don't think that's changing - though practically speaking, if every substantial similarity is being prosecuted as infringement then you basically lose the right to anonymous fair use. The major publishers don't care because...
- They have dedicated staff to handle actual infringement issues, and have gone over everything with a fine-toothed comb
- They are large enough to be able to absorb even large damage awards, whereas the average independent creative would be ruined by even a modest infringement judgment
These are problems mostly orthogonal to the problem of upload filters, though - copyright is a hellish nightmare regardless of whether or not a few extra people get access to YouTube Content ID.
Also, TPB never accepted DMCA takedown requests, that's actually how they got shutdown. The prevailing narrative at the time was that Sweden had no notice-and-takedown law on the books. But that makes no sense, because that law only exists to disclaim liability, not create it. If you don't have DMCA 512, that doesn't mean you no longer have to worry about takedowns. It means you can be sued for the actions of billions of your users. Furthermore, there were standing EU directives at the time that would have required Sweden to implement a DMCA 512-like law anyway.
I'm also confused as to how anybody expects to create an upload filter system that respects fair use, given how subjective the fair use criteria are. We have already have seen how this works out with sites like YouTube - it simply does not work.
I'm triply confused as to how this interacts with the DMCA safe harbor provisions. If this doesn't override them, as the bill authors say, how does it accomplish anything? Even The Pirate Bay nominally accepts DMCA takedown requests - so if sites can continue with their existing DMCA processes and be safe from being sued, why would anybody bother with implementing the technical measures?
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