Troubling Copyright Bill Goes to the US Senate

The latest US government effort to “fix” copyright just snuck up on me—I haven’t been paying as much attention to the EFF’s blog as I should. In the last few months, the Copyright Alternative in Small-Claims Enforcement Act (CASE Act) has made it through the Senate and House Judiciary Committees without any hearings from experts or options for public feedback. On 22 October 2019, the House passed the CASE Act by a vote of 410–6 (with 16 members not voting), leaving the only remaining chance to stop or modify it with the Senate.

If you’re in the US, call or write your senators with your concerns once you finish reading this! I just finished having a pleasant conversation with a staffer for Senator Charles Schumer and left voicemail with the Central New York office of Senator Kirsten Gillibrand.

The CASE Act is aimed at streamlining the dispute process in copyright infringement cases or, rather, to make it faster and easier for copyright holders to get paid for infringement claims. To accomplish this, the CASE Act would establish a quasi-judicial body in the Copyright Office called the Copyright Claims Board, staffed by a handful of appointed lawyers—not judges. The Copyright Claims Board would be empowered to award damages up to $30,000.

Nominally, having a case heard by the Copyright Claims Board is “voluntary,” but that’s true only if the respondent doesn’t opt out (and thus maintain their legal rights in court). If a complainant files with the Copyright Claims Board, it will send some sort of a notification—postal mail or possibly even email—and give the respondent 60 days to opt out. Fail to respond and you’re bound by the decision of the Copyright Claims Board even if you never received the notification. If a system like this is to be “voluntary,” it has to be opt-in on both sides.

If you were to receive email telling you that some “Copyright Claims Board” that you’d never heard of was going to rule on a copyright infringement unless you “click here to opt out,” you’d probably think “Yeah, sure, in Nigeria,” and mark it as spam. As is often the case with proposed copyright legislation, the CASE Act mostly stands to hurt individuals; corporations with legal resources will know what’s happening and how to opt out.

What happens now if you as an individual accidentally illustrate a blog post or social media post with a copyrighted photo? Or share a meme or video clip of copyrighted material without thinking about it? Usually nothing, but if the owner is perturbed by your infringement, they ideally would contact you and ask you to either take it down or pay a reasonable licensing fee. And you’d apologize for your mistake, do as they ask, and be more careful in the future, of course.

If the owner was a copyright troll, however, and you end up in court, a lawyer would likely be able to show that the actual damages were $0, so you would mostly have wasted time and legal fees. Of course, if a construction company used a professional photographer’s work to advertise its high-rise condo complex without permission, for instance, the court would likely levy a hefty fine for its egregious infringement.

Under the proposed Copyright Claims Board regime, the claimants would likely demand the maximum damages and wouldn’t have to convince a judge of the legitimacy of the amount. With the top penalty set at $30,000 ($15,000 for unregistered works), it’s easy to imagine copyright trolls lining up to file cases. That amount needs to come down—no small-time creator is being damaged to that extent, and any content company who was being so hurt would file a lawsuit anyway. Small claims court limits in most states range from $3,500 to $10,000—only Tennessee even comes close to the CASE Act at $25,000.

Copyright trolls are real. One technique we’ve seen used is for a copyright troll to post thousands of photos to Flickr and similar sites using a Creative Commons license that requires attribution. They wait until someone uses one of these photos but fails to include the attribution for whatever reason, and then send email demanding payment. You might think using images from license-free sites like Pixabay and Pexels would avoid the problem. However, we encountered a situation where a Pixabay photo we used in a TidBITS article and attributed “correctly” turned out to be owned by someone else. Luckily for us, the owner was entirely reasonable and just wanted proper attribution, which was easy to fix. Needless to say, getting hit with a $30,000 fine would have been disastrous.

The EFF has explained more about the CASE Act, and the nonprofit, nonpartisan R Street Institute has also come out against the CASE Act. The ACLU has called out the problems with the CASE Act’s opt-out approach and fine sizes. Finally, the Berkeley Center for Law & Technology and the UC Hastings Law School organized a workshop of scholars in the field to evaluate the CASE Act—they expressed concern about numerous aspects of the Act, not the least of which is that it may be unconstitutional. Read up on it soon, and if you’re in the US, please contact your senators.