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.
There are two sides to this issue. Those of us who make our livings from our words or pictures sometimes have to deal with people who appropriate our works with no intention of compensating us. I think this bill started with good intentions; it originally was described as small claims court for writers and artists. However, this bill does not deal with the issue of “orphan works” which are technically in copyright but which have no active “owner” – typically because the original writer or photographer died without clearly resolving who inherited the copyright, making it impossible to find anyone who could legitimately license it. Advocates claimed that they bill is written in a way that would discourage copyright trolls, but I am not convinced. I am not a strong supporter of the bill, but I don’t think it’s an unmitigated disaster.
Yeah, the intent may have been good, but when a “small claims” court has a maximum fine of three to ten times the maximum fine of nearly any state small claims court, along with the ability to bind people to its will if they failed to receive a notification, I think it’s just going to empower the copyright trolls more than anything else.
Given how it passed the House, my gut feeling is that it’s going to pass the Senate as well, so my hope is that by calling out these ways it can be easily abused by copyright trolls, the senators will modify it. (I have no knowledge of what’s actually possible with regard to modifications—hopefully it’s not too late.)
If it were truly voluntary, with both sides opting in, and if the maximum fine was significantly lower, I’d be fine with it. (Or, if I had any confidence that the Copyright Claims Board wouldn’t regularly award the maximum fine just because, that would help.)
I’m not really sure what the maximum fine should be. To my mind, small creators are the audience for this bill, and it’s hard to see a small creator being ripped off intentionally to the tune of $30,000. I can easily see $1000 to $5000, but what sort of creative works are people making available online in ways that they can ripped off where the damages would be higher than that? If we were talking about movie studios, sure, they could claim higher damages, but they’ll go straight to court and bypass any Copyright Claims Board.
While I certainly have reservations about the details, my bigger question is why is this needed at all? There are already legal remedies in place. Legal remedies overseen by (mostly) impartial judges, not lawyers incentivized to find people guilty of infringement and to impose large fines; legal remedies with an established notice process that makes it difficult for the defendant not to know they’ve been sued; an appeals process, etc. This just seems like an attempt to set up a second copyright justice system solely for the benefit of copyright holders because the existing justice system has the temerity to try to be fair to both parties.
It sounds to me like it’s a way to streamline the process, basically making it easier to sue offenders.
But that also makes it easier for trolls to abuse the system and hurt the little guy. Sounds dangerous.
I think the maximum of $30,000 reflects the ugly reality of legal fees these days as well as a desire to hurt the culprits. It’s going to take significant lawyer time at $400/hour or up to make a case.
My impression is that the biggest problems are music, graphic arts and photography, but I have not kept track. I had a major publisher claim they owned the rights to one of my out of print books because they had purchased the former publisher. They caved quickly when I showed them a letter from the former publisher reverting rights to me, but it could have gotten ugly if I did not have all the paperwork.
The scale of digital piracy is often overhyped by lobbyists, but it’s very tempting for publishers and creators to blame piracy for declines in sales when they see unauthorized copies of their material posted. However, the realities are much more complex, and what I wanted to do was to point that out.
What a fun new way to clog up the courts.
Much as I’m not a fan of the bill as currently drafted, the entire point is to remove copyright cases from the courts.
It appears that Senators Ron Wyden and Rand Paul have blocked the bill from going to a vote in the Senate.
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