Category: Copyright

The People the CASE Act Critics Don’t Want to Mention

“We are all authors now.”  This has long been a talking point of anti-copyright organizations.  I have credited it to Gigi Sohn, co-founder and former director of Public Knowledge because she kept tweeting it during House Judiciary Committee hearings on building copyright consensus in May 2013; but I don’t really know who said it first.  I only know that it’s a popular theme that may finally come around to bite the hands that tweet it.

Most of the time, my friends and I respond to this bumper-sticker phrase by criticizing the way in which it is false—namely that just because everyone posts stuff online, this does not make everyone authors of expressive works such that it demands a wholesale reversal of the way we think about copyright law.  In plain terms, just because 1.2 billion of us are all chattering, clicking, and sharing on Facebook and Twitter, this does not make the professional creator’s copyrights worth any less than they were before social platforms existed.

On the other hand, there is an extent to which that phrase has an element of truth to it.  Internet platforms and digital electronics have created opportunities for new kinds of authors, new forms of expression, and new avenues for entrepreneurism.  For several years, the copyright critics of the world have alluded generally to these new opportunities as a reason to prevent copyright enforcement online.  And they got away with this proposition by painting a false portrait of who copyright owners really are.

With well-funded resources to flood the blogosphere, the critics have bludgeoned the idea into peoples’ heads that the only copyright owners are either corporate entities or already-wealthy creators, who really should let small infringements go.  This false picture of the copyright-owner (and infringer) landscape has enabled entities like FFTF, EFF, and PK to use the kind of shorthand that is so effective on social media, sowing division between Creators and Users.  

But as these same digivangelists have preached in the past, many Users are Creators; and to the extent they’ve been right about that, a lot of those User/Creators are also—you got it—copyright owners.  What EFF, PK, FFTF et al are not telling these constituencies is that many of the “new” creators empowered by the internet may actually have a lot to gain from the copyright dispute tribunal that will be established by passage of the CASE Act. 

The popular YouTuber who has a clip appropriated by a commercial entity can avail himself of the Copyright Claims Board (CCB).  The budding cartoonist who is just building a following via Instagram—and who never thought about copyright until she saw one of her characters used without permission—can avail herself of the CCB.  The kitchen-table startup who makes unique products to sell on Etsy may find a remedy via the CCB. 

A key factor in this particular context is that many creators of these online works do not register copyrights, and often with good reason.  And while the CASE critics portray it as a negative that a rightsholder can initiate a claim via the CCB concurrent with filing a registration application, this is actually a significant advantage for the kind of entrepreneurial creators they claim to support. (See post here for more detailed explanation.) 

As the entrepreneurism fostered by the internet continues to grow, the “new” creators have started to discover what the “old” creators already knew—that if you make something cool, somebody will probably try to take it for themselves.  EFF, Public Knowledge, and Fight for the Future are probably hoping their creator constituents don’t notice this logical flaw in their campaign against the CASE Act.  But regardless of what they are thinking (or not thinking), the fact is many of you Users really are Creators and, therefore, copyright owners.  

And that brings me to a doozy of a point these critics REALLY don’t want to tell anyone.  Their favorite victims—the targets of misused DMCA takedown provision—will have an unprecedented remedy in the provisions of the CASE Act.  That’s right.  You might make a fair use of a work that is removed by DMCA; or have material taken down by a party misrepresenting itself as the rightsholder; or have commentary or parody removed for reasons that have nothing to do with copyright.  And now, instead of just being a statistic for the EFF to blog about, you can affordably pursue a claim against the party for misuse of DMCA via the CASE Act.  

Perhaps on this point most of all, the EFF, FFTF, PK would rather not talk about such pesky details because they might start to look as irrelevant to copyright policy as they are chronically dishonest about it.  Let’s face it.  For all the noise they make on subjects like wrongful DMCA takedown, what do they really do for any of those users other than capitalize on the problem as a way to maintain their own relevance and fundraising?  CASE Act provides an accessible, affordable remedy. And maybe that’s the thing the critics hate most of all.  

How to Avoid Copyright Infringement

After the CASE Act passed the Senate Judiciary Committee* on Thursday last week, the critics hit “Publish” on the blogs they had written with the intent to scare users—doubling down on the narrative that the Copyright Claims Board (CCB) for small claims will lead to a whirlwind of infringement judgments against ordinary and innocent users.  I and others have explained the many technical reasons why this allegation is unsupportable under the new statutes, but folks out there will still be frightened by blogs like the one from the oxymoronically-named Center for Democracy and Technology.  Stan Adams writes …

“You may be thinking, ‘I won’t infringe copyright, I’ll just make sure not to use any protected works.’ Here’s why that will not be as easy as you might think. First, copyright is automatic. This means that when someone snaps a new photo, they immediately hold the rights to it. If you found a photo or other work that you wanted to use, you would need to get permission from the rightsholder. In some cases, determining who to ask is relatively easy.”

Actually not infringing copyright is easier than Adams wants you to think.  Believe it or not, many of the most prolific authors and users of works since 1978 (when copyright became automatic) have been not infringing copyright rather effectively throughout their careers.  Not just the wealthy stars of the entertainment world, but regular middle-class creators (like the ones the CASE Act is designed to help) have been not infringing one another’s copyrights in the production and reproduction of millions of works.  How they achieve this miracle is really quite simple, and the basic steps are implicit in Adams’s paragraph above.  To avoid infringing copyrights, do the following:

Step 1:  Do not use work that is not yours.

Step 2:  If you want to use work that is not yours, do a little homework and make sure you have a plausible legal basis for using the work; or obtain a license for use of the work.

Step 3:  If you are unable or unwilling to make the effort in Step 2, return to Step 1.  

When the CDT, EFF, et al write posts like the one by Adams, there is a sleight of hand afoot (if you will).  He is purposely, albeit subtly, conflating the unintentional user (e.g. someone reposting a meme) with the intentional user (e.g. a blogger or commercial entity posting editorial or promotional material).  It is neither affordable, nor technically possible, under the CASE provisions for a small claimant to go after myriad unintentional users like re-tweeters et al.  But the intentional users, who will be the subjects of claims brought via the CCB, really can avoid infringing by following the basic guide above. 

Whether you are advertising a business, making a political statement, promoting an event, writing a blog, etc., the moment you consciously decide you want a photograph, illustration, video clip, or music to accompany the message, your responsibility to not infringe copyright is both reasonable and entirely achievable.  There are many low-cost options to avoid infringing copyright, including, in some cases, asking the copyright owner for permission to use the work.  I know.  It’s downright uncivilized.  Permission.

One reason these organizations get away with scaring people about CASE is that we have normalized copyright infringement (to say nothing of permission in other contexts) to the extent that infringement is portrayed as a form of civil disobedience rather than what it usually is—a complete lack of courtesy toward individual people.  Because what happens in real life is that some business owner, perhaps a local insurance broker, builds a web page for his company, and because the refrain grab it off the internet has been playing in his head since middle school, he does not stop to think that the photograph of the family buying a car requires a license for use.  

That is the kind of infringement CASE is designed to address for the independent creator; and frankly, the commercial infringer should be grateful for the small-claim option as well.  As we saw in Brammer v. Violent Hues, a commercial user who really should have known better wound up costing himself a lot of money in federal court defending an indefensible use of one man’s photograph.  That was an archetypal example of an intentional user hastily making use of a photo he “found online,” knowing full-well that he had other options, including lower-cost stock photos or taking his own picture.

Just because the internet makes copyright infringement a bit too easy, this does not mean that not infringing copyright is especially difficult.  And CASE does not change anything about the parameters of copyright law, except that it may perhaps remind certain users that, no, everything online is not there for taking.  If intentional users simply pause to think about what they are doing and to what purpose, making legal and/or fair uses of works is not so mysterious as Adams et al would have you believe.  After all, if you are building a web page, writing a blog, promoting an event, etc. and not thinking about what you’re doing, you may have bigger problems than potential copyright infringement.

The “wild west” is over.  Good riddance.

Beyond copyright matters, I believe the folks at these organizations mean well (mostly), but they should pause and think about their personal moral codes in context to the world view they keep promoting—because it is actually destroying the world.  The romance of the “wild west” internet is over, and good riddance because the Wild West is nothing to aspire to as a society.  Consequently, it is worth asking why the CDT, EFF, et al are still so eager to promote the illusory value of never thinking about what we do online or to whom we do it.

These groups tend to oppose both platform and user liability for almost any kind of conduct; but whose interests are really served by a free-for-all market devoid of human agency, permission, or responsibility?  As we see in daily examples, it is the perfect environment for entrenching the economic and political power of the major web platforms while safeguarding the conduct of predatory actors and trolls, and—I would add—amplifying hateful rhetoric with tangible and dire consequences.  I suppose Stan Adams’s organization could change its name to Center for Tyranny-of-the-Mob and Technology, but that’s a bit of a mouthful and probably not good messaging.  Yet, bizarrely, it is kinda what they are selling.  

*Original publication stated that CASE passed out of the Senate and not just the SJC. Thanks to reader Dave Davis for catching the error.

Photo by conejota.

EFF Sides With Goliath (again) in Opposition to CASE Act

Now that the bill creating a small claim provision for independent authors of works is making progress in Congress, EFF has pivoted to its standard late-stage strategy whenever they try to kill legislation: the dissemination of scare-mongering bullshit. I do not mean that I disagree with them. There are not two sides to the story they are telling or considerations about which well-meaning parties can disagree. I mean the EFF is just plain lying when they try to scare people into believing that “Life-altering lawsuits could come to regular internet users” as a result of the CASE Act. No they bloody-well cannot.

The narrative being pushed by the EFF is that the small-claim provision will make litigation so easy for claimants, that more copyright owners will go after more regular folks. They want me to believe this means a higher probability that if my kids, for instance, share memes with photographs, I could be liable for damage awards that would indeed be damaging to my ordinary income.

But as explained in previous posts (because one can actually read the bill), CASE does not make enforcement so easy that rightsholders are suddenly going chase down every innocuous use of their works looking for quick payouts from ordinary users. For instance, rightsholders are limited in the number of claims they can file by both statute and their own resources. So, as a matter of common sense, if you could only file so many claims at a time, are you going to pick the handful of commercial users who should have licensed your work, or are you going to try to file against hundreds of users who might have shared some meme that was made out of your work?

Then, of course, there is that nagging little detail that the small claim tribunal is a VOLUNTARY alternative dispute resolution procedure. How can a process that is VOLUNTARY possibly result in what the EFF is alleging? Any notice served must prominently state that the tribunal is voluntary, and this will be repeated by the Copyright Claims Board when it sends its notice. I am always amazed that organizations like EFF, who claim to defend the internet, seem to think that this kind of information is not available to ordinary people via the internet. One might almost think the organization is behaving like…what do they call them?…gatekeepers?

The EFF presents itself as a crusader standing up for ordinary people against the powerful, whether that power is held by public or private institutions. Yet, their dishonest portrayal of the CASE Act is further evidence that their defense of the “little guy” does not seem to include all the defenseless victims of the digital age. The fact that their definition of the “little guy” does not embrace the working photographer who gets ripped off is no surprise, of course. After all, they do not even consider victims of harassment, revenge-porn, or trafficking to be worthy of so much as a conversation about altering Section 230’s immunity for web platforms that profit from these crimes.

By now, it is clear to most people that the internet creates new opportunities for bad actors just as it creates new opportunities for good ones. The EFF is not responsible for this unavoidable condition, but they do appear to have chosen sides, consistently determining that certain victims are worth sacrificing for what they have determined is the “greater good.” Who put them in charge of making that decision is a solid question, but it is hard to miss the fact that the “greater good” does frequently align with the interests of the major internet and high-tech corporations.

On the other hand, maybe the EFF is not the Silicon Valley shill that many have accused the organization of being. Maybe they sincerely believe what they are saying about the CASE Act and are not liars so much as they are merely incompetent. Either way, it’s scare-mongering bullshit. And don’t we have enough of that on the internet? Including more than a few of those precious memes the EFF is so worried about.