CASE Act noise gets louder. And sillier.
After the CASE Act passed the House (410-6) on October 22 and moved onto the Senate, the various groups opposed to this copyright small-claim bill turned up the volume on the eerie headline that says Share a Meme. Lose $30,000! I and others responded that this allegation is simply not grounded in reality, and to this, Meredith Rose of PublicKnowledge replied with the tweet below …
What’s going on there is a subtle but wicked-important sleight of hand in the service of a multi-layered falsehood. But that’s why it’s effective. The lie is complex. Though, oddly enough, Rose could not have picked a better example to demonstrate how disingenuous the anti-copyright groups are being about the CASE Act. In fact, the logic is so convoluted, it is reasonable to wonder whether these people are not so much ideologues as just bad attorneys. Who can say for sure, but here are some facts you are free to verify for yourself …
To begin, the infringement claim to which Rose links in that tweet may lack merit because it was filed by a known copyright troll, which is one reason I assume she selected this example—hoping to imply that trolling will get much worse after passage of the CASE Act. So, I shall try one more time to describe how the Copyright Claims Board (CCB) will actually look to the copyright troll, whom the bill was specifically designed to discourage.
Whether or not that particular claim has merit, Rose’s citing it only emphasizes the fact that weak or invalid claims can be filed ad infinitum in Article III courts; and it can cost the named defendant quite a lot of money just to argue that the complaint should be dismissed. This is precisely how an unscrupulous attorney (not just a copyright troll) uses the threat of even invalid litigation to scare settlements out of people. By contrast, the Copyright Claims Board (CCB) provides no such mechanism of intimidation.
Because the small-claim tribunal is meant to be used by regular people without the aid of attorneys, the CCB must review every claim for merit before it can even be considered “active” and served upon a respondent. (And yes, claims will be served, not emailed as EFF and others have alleged.) Further, any party who files as few as two warrantless claims, will not only have those claims rejected, but will also have all other active claims vacated by the CCB on the assumption that the filing party is abusing the system.
Then, as mentioned many times in other posts, repeat abusers of the CCB face a potential $5,000 fine and/or may be barred from access to the small-claim tribunal for up to one year. And, finally, any respondent can opt out without providing a reason. So, Rose has unwittingly highlighted why the CCB will be a barrier to claims like the one she cited.
Okay, but are memes infringing?
The next noteworthy fact about the case Rose cited is that it does not actually involve a meme. The accused infringer apparently published a photograph to her website without license, and if that is the only evidence available, there is likely no legal ambiguity there. Publish anything to a site you control, and you are responsible for any potential infringement claim, whether or not the claim is filed by an unscrupulous attorney.
This goes to the next layer of nonsense in Rose’s tweet, which is really two falsehoods working in tandem. The first is that she is conflating conduct (e.g. publishing vs. sharing) with a genre we call “memes;” and the second is the implication that posting a visual work anywhere online that has in some way been altered makes it a “meme,” which automatically makes the image itself—and the posting of it—a fair use. Spreading this kind of confusion is a disservice to many of the people PublicKnowledge claims to defend.
A so-called meme based on the use of someone else’s visual work can be a fair use, but it is false to believe that every alteration, like placing some text on a photo, automatically makes it a fair use. It is of course impossible to say, on a case-by-case basis, which of the gazillion “memes” out there are probable fair uses and/or which among these images even lives in public consciousness long enough to attain the status of a “meme.” But that ambiguity is central to the aforementioned fallacy of conflating this popular internet genre with the conduct of “sharing” memes.
What the anti-copyright folks really want you to believe is that if you see a meme on Facebook or Twitter and click “Share” or “Retweet,” you will be at greater risk for an infringement claim if the CASE Act passes. (And then of courseyou will be subject to the maximum penalty of $30,000.) This scare-tactic relies on the fact that all that sharing we do on social platforms does occur in a somewhat gray area of the law—that although nobody gets sued for re-sharing something that was already on, say, Facebook, this does not mean such a suit could never be filed or that a claimant could never win. With the law, it’s best never to say never. But …
Having said that, there are both statutory and caselaw reasons why a claim of infringement for clicking “share” on material that is already on a social platform would be very difficult to support in federal court—and, therefore, even more difficult to allege via the CCB, even if such a claim were ever filed. The reason it would more difficult at the CCB is because that Board will not have the authority to adjudicate such an untested and delicate question of infringement. Absent clear statuary or precedential guidance, the Board would have to reject the claim and insist that the complainant file in court. (Note, that this is an opinion and prediction based on observation.)
In addition to the legal complications, there are many practical reasons we do not see these lawsuits right now—why we are not being sued by parties, who can afford it, for sharing those memes—and these reasons have nothing to do with the absence of the CASE Act. Probably the most common reason is that online sharing is so pervasive that many authors of works have, for better or worse, made their peace with a certain amount of remix and contributory distribution of their material. There is no practical means of sifting through all that to determine what is and is not fair use, most of it is harmless, and the list goes on …
Small-Claim Copyright Reality
Behind all that noise, actual independent copyright owners, whom the CASE Act was designed to serve, have neither time, interest, nor resources to explore whether or not your “share” of a so-called meme made from their image might be an infringement. It is simply not practical to pursue such a claim, even if it were desirable. If Disney isn’t suing you for sharing that princess meme, you can be sure that Joanna Photographer can hardly afford to do so, even at the CCB.
The independent copyright owner, like the visual artist who makes between $30,000 and $70,000 a year from her creative work, does not have an unlimited supply of $250 filing fees to throw at copyright enforcement. Depending on her cost-of-living needs, just four filings with an upfront cost of $1,000 can be a substantial outlay in a given year. While it is true that one or all of those four claims could yield damage awards well worth the price of the filing, there are barriers to this outcome, not least being that an alleged infringer can opt out of the tribunal.
So, it is only common sense that the independent, small-business copyright owner is going to file claims against willful, direct infringers who clearly should have licensed the work in the first place—and usually for commercial purposes. These are the claims that will hold up best and have the greatest likelihood of yielding a justifiable damage award—not your silly little meme share on Facebook.
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