Creative Commons Tells Senators To Stop Using Its Name To Justify Dangerous Copyright Filters Bill

We just wrote about Senators Leahy and Tillis and their “SMART Copyright Act” and its dangerously problematic setup, that would enable Hollywood to petition the Copyright Office to get what it has long desired: mandatory upload filters for websites hosting 3rd party content. Professor Eric Goldman has explained how this bill is “a thinly veiled proxy war over mandatory filtering” while the EFF has called the bill “an unmitigated disaster.”

But, as I noted in my initial post on it, Tillis released an incredibly disingenuous “Myths v. Facts” document in support of the bill. It’s not worth going bit by bit through everything that’s backwards in the document, but in my post I called out one thing that seemed particularly egregious. Tillis suggested that Creative Commons supported his bill.

MYTH: This is a filtering mandate that will chill free speech and harm users.

FACT: The SMART Copyright Act creates an open process for all stakeholders, including the public, to identify copyright-related technological measures that should be broadly available to all. Some measures, like the International Press Telecommunications Council (IPTC) photo metadata standard, or a Creative Commons license, can help users know whether and how they can use content while also respecting creators’ rights. Other technological measures, including “filtering” technologies, are used to stop infringing content at scale, or make content available for licensing. The bill ensures that any designation of existing measures requires input from all stakeholders and assessment of public interest considerations. This process is also an opportunity for users to provide technological solutions to these concerns. The Copyright Office’s particular expertise in the area of copyright and its exceptions—like fair use—can assist with ensuring the right balance is struck between curbing infringement that undermines authors’ constitutional rights and promoting online availability of materials.

I noted in my original post that it was pretty despicable to suggest that Creative Commons would support this bill, as they had chosen not to weigh in during the recent discussion regarding these technical measures at the Copyright Office.

Well, now Creative Commons has weighed in… and they don’t seem particularly happy with Tillis for either this bill, or using the Creative Commons name in pushing propaganda about the bill.

But one part of this attempt stands out to us: the list of “myths” Sen. Tillis released to accompany the bill. In particular, Tillis lists the concern that it is a “filtering mandate that will chill free speech and harm users” as a myth instead of a true danger to free expression–and he cites the existence of CC’s metadata as support for his position. 

Creative Commons is strongly opposed to mandatory content filtering measures. And we particularly object to having our work and our name used to imply support for a measure that undermines free expression which CC seeks to protect.

CC licensing is designed to let creators choose to share their work beyond what copyright allows by default–to grant more permissions, not impose more restrictions. And while our license metadata does let reusers know critical information about licensed rights, this metadata exists to convey important information about licensed works, not to restrict their use. Critically, CC licenses were never designed or intended to override the limitations and exceptions to copyright that allow for free expression. 

Tillis and whatever staffer came up with this nonsense should feel shame about this. But they won’t. It seems very likely that this was done on purpose, with Tillis’ staffer laughing about using CC’s name in support of Hollywood’s filtering. That alone should disqualify the bill from getting any kind of serious consideration. This bill was deliberately designed to poke at supporters of an open internet and open communications, not as a legitimate entry into the discourse about improving copyright law.

Rather than learning their lesson from the recent 10 year SOPA anniversary, it appears that Senators Leahy and TIllis have decided that enough time has passed to try again…