Last week, bills to create a new, small-claim copyright process were introduced in both the House and Senate. Generally referred to by the House name the CASE Act, the proposed changes to Title 17 will establish a Copyright Claims Board (CCB) at the U.S. Copyright Office with the purpose of offering rights holders a path to remedy infringements without the high cost of federal litigation. Both claimants and respondents may avail themselves of the tribunal procedures with or without counsel; and claimants may also initiate proceedings for alleged infringement of works that are not yet registered, although registration must be obtained prior to the Copyright Claims Board considering a proceeding “active.”
Organizations like Public Knowledge and the Electronic Frontier Foundation reveal their true colors when they criticize CASE, not least because the topic itself is just barely within the purview of either organization’s mission. It is true that a lot of garden-variety infringement occurs online and that this is a significant motivation for creating a small-claim option, but that does not make the proposal a “digital rights” issue per se. There is no “right” to infringe copyright on the internet, so it would be refreshingly honest if EFF and PK would simply declare their open hostility to any form of copyright enforcement and stop paying lip-service to “finding better remedies” …
“We acknowledge the very real problems faced by many artists trying to enforce their copyrights online, and are hopeful that collaboration among all stakeholders can create a meaningful solution. However, the current CASE Act is not it.” – Public Knowledge –
That is a multi-layered lie. Despite many opportunities to weigh in over the many years CASE has been in development, Public Knowledge declined to do so. It is not a good-faith negotiator representing stakeholders, and it is frankly hard to imagine who those stakeholders might be other than the staff of Public Knowledge itself. After all, opposing policy on shaky grounds is usually good for a few fund-raising dollars, which is why my favorite detail in their little missive is this one:
“The Act further entrenches an already-toxic culture of secrecy within major entertainment industries….”
I would love to know in what alternate Marvel Universe does anyone think the multi-billion-dollar “entertainment industry” has thrown its “secret” muscle behind a copyright small-claim provision. The maximum penalty that can be awarded by the CCB would not cover the legal fees for discovery in the kind of cases typically litigated by the entertainment industry. This bill has nothing to do with that world. Quite the opposite. It was proposed so that copyright owners who are not Disney, Sony, and Netflix can restore some meaning to their rights.
If nothing else, I’m personally sick of pavlovian politics, whether it’s a racist dog whistle or an overt use of buzzwords invoked with the aim of misinforming the public about an issue. Public Knowledge’s attempt to scare people by falsely alleging that this bill is the handiwork of Hollywood lobbyists lurking in the dark corridors of Congress is a classic example of why those who claim to defend the “information age” are so often the best examples of why we should not.
Meanwhile, any party who genuinely wants a “meaningful solution” to rampant, online copyright infringement should actually applaud the CASE proposal as a mechanism that directly engages rights holders and alleged infringers in a process that will educate both parties about the exclusive rights and limitations of copyright.
While PK and EFF will continue to try to paint CASE as a damage-award processing unit for claimants alone, nothing could be further from the truth, starting with the fact that although pursuing a claim via the CCB will be much easier than traditional litigation, it will still be a moderate pain in the ass. There is enough work that needs to be done—either by the copyright owner or an attorney—that no independent rights holder is going to devote time or resources to pursue a nothing claim.
To the contrary, the most consistent complaints come from photographers whose images are used for commercial purposes without license; and many of these are the archetypal cases worth pursuing in a small-claim venue. As described in this post, when photographer Jenna Close testified before the House Judiciary Committee in support of CASE, she identified eighteen unlicensed, commercial uses of her works being made at that time. Depending on the nature of the uses and the licensing fee for each, that could be a photographer’s rent or insurance for a year.
At the same time, the CCB procedure will also be beneficial for respondents (defendants), including those who infringe works either naively or willfully. As discussed in this post about Brammer v. Violent Hues, that case looked to me like an ideal circumstance in which both parties would have benefitted by opting for the CCB rather than federal litigation.* The conclusion would have been the same, but the penalty the infringer would have paid would very likely have been far less than the grand total he now owes after pursuing an ill-advised fair use defense all the way to the appellate court.
CASE Is NOT a Copyright Troll’s Playground
“The CASE Act would give copyright trolls a faster, cheaper way of coercing Internet users to fork over cash “settlements,” bypassing the safeguards against abuse that federal judges have labored to create.” – EFF, April 2018 –
That’s more or less the headline EFF et al have been using—alleging that CASE is a gift to copyright trolls. Trolls are litigators who use false or otherwise improper claims to frighten accused infringers into settling threatened litigation. They are a problem (albeit often exaggerated), and frankly the internet platforms have provided them with hunting grounds that nobody at EFF or PK is suggesting need to be shut down. Meanwhile, the proposed Copyright Claims Board will be a terrible venue for copyright trolls.
For one thing, the CASE Act contains about page and half of anti-troll statutes—a safeguard that does not exist in any Article III court. Parties bringing a claim for “harassing or other improper purpose, or without a reasonable basis in law or fact,” may be subject to a $5,000 penalty and/or barred from using the CCB for a year. In addition to those barriers, the damages caps, along with the Register’s discretion to limit the number of cases a single party may bring in particular time-period make the small-claim tribunal a money-losing proposition for the would-be troll.
Moreover, as proponents involved with the development of this bill have stated repeatedly, it is very hard to troll any party through a procedure that is VOLUNTARY. The CCB is fundamentally an alternative dispute resolution option. A respondent served with a claim may opt out within 60 days, and the CCB will dismiss the proceeding. So again, not a very effective club for the troll to wield.
So, I really don’t understand why organizations like EFF and PK believe this issue belongs in their wheelhouses in the first place. Much like their dogged opposition to the Music Modernization Act—which had support from rights holders, tech platforms, and nearly all of Congress—it seems these organizations are just culturally opposed to the existence of copyright no matter what. On the other hand, they make up so much crap about copyright, how would they really know?
*Admittedly, Violent Hues would have done better to just pay the fee originally demanded by Brammer.