Category: Intellectual Property

No, Mike, it’s that you’re just wrong about the CASE Act.

I had to stop myself from responding on Twitter to Masnick’s comments about the CASE Act because I do not like to devolve to pure ad hominem as a form of argument.  Yet there are few things as offensive as outright nonsense disguised to sound like thoughtful consideration.  To wit, I present the following … 

Nobody has “ignored” those considerations; they just don’t make any damn sense.  Moreover, those tweets reflect an astounding degree of cognitive dissonance from a guy who is one of the loudest cheerleaders on the Tech-Utopian Squad.  Mike will dutifully turn sarcasm into a sublime choreography whenever someone thinks to criticize the design, values, policies, functions, or effects of internet companies, but he accuses supporters of the CASE Act of foolishly believing that the copyright small-claim provision will never be used improperly. Really?

For someone who cries “straw man” with some frequency, Mike will have a devil of a time finding a CASE Act advocate who has actually predicted that no bad actor will ever attempt to use the Copyright Claims Board for unmeritorious purposes.  Nobody involved with the provision is that naïve.  Create any system, and somebody somewhere will at least try to use it improperly.  No shit. That’s why the statute anticipates bad-faith use.

Unlike the major internet companies, whose founders intentionally “disrupted” our social, economic, and political world with smug disregard for any of the potential negative consequences, provisions like the CASE Act actually do imagine improper conduct.  It’s in black and white right there in the statute for all to read.  For instance, the $5,000 fine for intentionally filing bad-faith claims with the Copyright Claims Board (CCB) is the antithesis of a blind assumption that everyone will always act in good faith. See how that works?

Nevertheless, Mike believes we’re all mad not to recognize that the small-claim copyright tribunal will inevitably be used to either 1) silence someone; or 2) shake them down for cash.  Let’s consider that shall we?

On the silencing thing, imagine I want to silence Mike Masnick (just sayin’).  He has the right and ability to post hundreds of comments a day on social media, or write posts on Techdirt, and the vast majority of all that speech will not use works that implicate anyone’s copyrights.  So, as a would-be censor, I have to wait in the tall virtual grass for him to make an infringing use of one of my copyrighted works; then pay a fee and file a claim with the CCB; pace the house for several weeks while that process runs its course; and then, if Mike does not opt out of the voluntary tribunal, I will MAYBE get a judgment in my favor, IF my claim of infringement has merit.  That seems like a damned inefficient way to silence someone.

Conversely, I think the data shows that if you really want to silence a person these days, your best bet is to rally the trolls and self-righteous techbros into doxxing and harassing the hell out of them until, in some cases, they are actually forced to flee their homes and jobs for their own safety.  But Mike thinks we should worry about someone weaponizing the Copyright Office.  

In that regard, Mike’s use of the word “shake down” is provocative, but just a tad overstated.  Imagine trying to mug somebody while armed with nothing more than an index card that says, “Please, give me your wallet.”  The target of this improbable assault says, “Nah,” and walks on.  That is roughly how effective the CCB will be as a means to “shake someone down.”  

If anything, the fact that the CCB will be a voluntary dispute resolution alternative has been criticized as a potential weakness of the entire proposal, but it has to be voluntary in order to be constitutional.  Still, as I discussed in this post about a case that, for no good reason, went to the Fourth Circuit Court of Appeals, it is quite possible to anticipate real scenarios in which both claimants and defendants would want to avail themselves of the CCB—especially in conflicts where federal litigation seems likely. 

Mike and the rest of the Tech-Utopian Cheerleading Squad really need put down their pom poms, take a time-out, and ­think about what they’ve done.  Perhaps in a moment of quiet introspection, they will recognize some different systems that, despite the good intentions of those who designed them, have been abused by some pretty bad actors to truly hideous effect.  I don’t want to give it away, though.  Catharsis must come in its own time.   

Reviewing the Basics of the CASE Act

This week, the Copyright Alternative in Small-Claim Enforcement (CASE Act) will very likely pass the House.  Like a quiet tidepool of bipartisanship in otherwise raging waters, congressional support for America’s entrepreneurial creators—photographers, illustrators, designers, musicians, authors, et al—is a matter about which both Republicans and Democrats agree.  And they have not been terribly receptive to the Big-Tech-funded arguments against this legislation for the simple reason that those arguments do not stand up to scrutiny.   

Nevertheless, some negative messaging continues to seep into the blogosphere; and the Senate version of the bill still has to pass.  So, I thought it would be worth providing a basic overview of what CASE IS and what CASE IS NOT.  

CASE IS a proposal to create a small-claim alternative to federal litigation for independent and small-business creators to protect and enforce their copyrights.  

CASE IS NOT a new, fast-tracked, or backdoor proposal.  The need for a small-claim option has been in discussion among copyright experts and independent creators for over a decade, and the legislative process for the current bills began in earnest approximately two years ago.

CASE IS an opportunity for new-media creators (e.g. YouTubers, ETSY merchants, budding digital artists) to remedy infringing uses of their works.  As online-only distribution has grown, so has unlicensed exploitation of these new forms of expression.  For all the new creators who have earned fans and revenue through online platforms, many have also discovered that their work is vulnerable to infringement just like any other rightsholder.  

CASE IS NOT an unconstitutional denial of due process.  The Copyright Claims Board (CCB), which will be convened at the U.S. Copyright Office, is a voluntary alternative dispute resolution option.  An alleged infringer (respondent) may opt out of the small claim tribunal, and the matter will be considered closed by the CCB. Voluntary alternatives to Article III proceedings are not held to be violations of due process rights.  

CASE IS an opportunity for an alleged infringer (respondent) to choose a much more affordable means to defend against a claim of infringement.  Thanks in large part to much of the rhetoric of the internet industry, many users of works are confused about licensing and fair use—and many conflicts simply do not belong in federal court.  So, whether a defendant is right, wrong, or somewhere in between, the Copyright Claims Board will be a more efficient, cost-effective path to a resolution.

CASE IS NOT a golden opportunity for copyright trolls.  Unlike Federal Court, the statute contains explicit anti-troll provisions.  Trolls make money by frightening people into settling (unmeritorious) federal claims for copyright infringement.  Unlike a court, however, the CCB imposes fines for misuse of its claims process, and the Register of Copyrights has the authority to review and restrict repeat users—and even deny them access to the CCB for multiple flimsy claims.  The math simply does not add up for the would-be troll.

CASE IS a means to take effective action against a party that may have wrongly targeted you with a DMCA takedown.  After years of alleging that takedown is chronically abused, it is curious that the anti-copyright groups have opposed CASE, which provides the first practical recourse for the average user to file a claim against an abuser of the DMCA.  

CASE IS NOT a Big Media proposal.  CASE antagonists have tried in a few instances to describe this legislation as the policy agenda of giant copyright holders like movie studios and recording companies.  But it is a matter of common sense to recognize that these multi-billion-dollar industries have little interest in a small claim provision, one way or another.   

CASE IS still a mild pain the butt for claimants.  A claimant needs to file a valid complaint, pay a filing fee, and take time away from his/her real work to do commence enforcement action.  Small-business-type copyright owners, by definition, do not have the resources to file a large volume of claims and, therefore, have very little incentive or ability to file frivolous claims.  They will naturally focus on commercial users and those infringements that directly threaten their livelihoods.   

CASE IS NOT a provision for rubber-stamping infringement claims.  Although the critics make it sound as though the CCB will be a damage-award processing center, that is not how things work in the real world.  By law, the board must review complaints for legal merit under the provisions of the copyright act, and they must also consider the same defenses (e.g. fair use) that any respondent may bring to an Article III court.  

CASE IS a proposed solution for claimants and respondents that alleviates the need to hire legal counsel or to travel to Washington, D.C. or any other venue.  “Appearances” are conducted online via video chat.  Counsel may be hired by either party at their own discretion, but the process is designed for non-attorney users.  

CASE IS NOT too complicated for “average users” to understand, if they should receive a claim against them.  Despite messages designed to frighten every internet user (i.e. everyone) into thinking they will need a law degree to know how to respond to a notice, it will actually be quite simple.  See flow-chart.  Nevertheless, if doubt persists, the recipient of a notice may simply opt-out of the proceeding, and that will be the end of it.  

CASE IS SERIOUSLY NOT a threat to the “normal” use of the internet.  It’s true that we share a lot of material online.  Yet, despite this, you can scroll a typical Twitter or Facebook feed for quite some time before encountering a post that even implicates copyright—let alone a post of substantive value like news or commentary.  Given the trillions of interactions per day, online activity will remain unaffected by the deliberations of the mortal humans adjudicating claims and responses at the Copyright Claims Board.  

CASE IS the first copyright provision in a very long time that restores enforcement power to the proverbial creator next door—those people for whom copyrighted works represent a middle-class living, but who have had to let countless significant infringements go because the cost of enforcement is just too high for their budgets.  Legislatively, it is a rare moment when David (the creators) gets to win over Goliath (the internet and tech industry).  And won’t that be nice for a change.

Flow chart by Graphics Arts Guild.

Google-Funded Groups Determined to Sink the CASE Act

A recent anti-CASE Act post by Daniel Takash of the Niskanen Center once again demonstrates why the tentacles of Google-funded “think tanks,” are the informational equivalent of “tobacco industry biologist” or “oil industry climatologist.”  Not only does Takash lead with the unfounded prediction that CASE provides a rich framework for copyright trolls, his post comprises a handful of talking points that are clear misstatements of fact.  Here are my faves…  

TAKASH:  Though it is tempting to streamline the process for compensating creators’ whose work has been infringed, this legislation would make it far easier to abuse a copyright system designed to “promote the progress of science and useful arts.”

REALITY:  This opening statement contains two lies, albeit subtle ones.  The first is an implication that the parties now opposing CASE believe in its purpose and remain open to some revised version of the bill (more on this below).  But the most important omission in that statement is that the CASE provisions would make it easier for claimants AND defendants to find relief in copyright conflicts—including a defendant who, for instance, receives a wrongful DMCA takedown notice.  Don’t believe me? Watch this long video by attorney/YouTuber Leonard French explaining why he sees CASE as a solution for indie creators like his fellow YouTubers.

TAKASH:  First introduced in the last Congress, not even one hearing has been held on the bill. 

REALITY:  Here’s a link to the announcement of the hearing held by the House Judiciary Committee on September 27, 2018. But in addition to this blunt misstatement, Takash doubles-down by alluding to Representatives Lofgren (D-CA) and Buck (R-CO) as “identifying serious issues” with CASE that were “dismissed” by Chairman Nadler (D-NY) and Ranking Member Collins (R-GA).  I would love to know whence this claim comes.  Because, in his paragraph, Takash only links to a letter addressed to the Senate Judiciary Committee subscribed by the usual Google-funded cabal of anti-copyright organizations,* in which there is no mention of Rep. Lofgren or Buck. 

In that hearing of last September (when the Chairman was actually still Rep. Goodlatte), Lofgren’s position can fairly be described as favorable toward CASE with a few lingering questions, and I honestly do not remember any objections of note coming from Rep. Buck.  As of today, neither Representative has any statement about CASE on his/her website, and they clearly did not raise any objections strong enough to keep the bill from sailing out of committee with strong bi-partisan support. 

TAKASH:  This is why it’s critical that we hit the brakes and subject the CASE Act to some much-needed scrutiny. 

REALITY:  The early conversations about a small claim copyright provision are more than a decade old.  The CASE bill itself ramped up as a legislative process a little over two years ago; and it has been crafted and debated in the open, inviting testimony and input from multiple sources, including several of the anti-copyright parties named in the list below.  The difference this time is that, for the most part, Congress is not buying Big Tech’s bullshit that the industry cares about “innocent users.”  

In fact, this “what about the poor users?” argument was presented in that mythical hearing of last September by lobbyists for the Communications and Computer Industry Association and the Internet Association, and both Reps. Jeffries and Collins were highly skeptical that these industries care about users at all.  To Matt Schruers of CCIA, Jeffries responded,  “… with respect to many of the companies that you represent, you have these contracts of adhesion [TOS] where the same internet users that you say you’re here before the committee to defend are waiving their rights to participate in the Article III federal court system.”  

In short, the multi-billion-dollar internet company that is supposedly worried about you being sued by an independent copyright owner has indemnified itself against you ever claiming some form of harm by a major web platform.  This is emblematic of the most pernicious lie of the digital age—that the internet industry has lulled tens of millions of people into believing that these platforms empower individuals.  As my friend Neil Turkewitz put it on Twitter the other day, “the illusion of human agency.”  

TAKASH:  It is unreasonable to expect someone who unknowingly posts a copyrighted photo on their blog, for example, to be familiar with the nuances of fair use. …Post someone else’s picture – or even forward an email without permission – and you are automatically a copyright infringer.

REALITY:  Is it unreasonable to expect people to follow a basic rule they probably learned as very young children?   Do not take what is not yours.  Because by following this simple (no-law-degree-required) guideline, it is not actually possible to “unknowingly post a copyrighted photo on a blog.”  At a minimum, one must execute about a half-dozen mouse clicks to publish a photo on a blog, and unless you are a somnambulist blogger, these conscious steps are what the legal folks call “volitional conduct.” 

Alternatively, if you elect to use photos (or other works) that are not yours and cannot be bothered to learn a little something about licensing, permission, and fair use, then yeah, you’re vulnerable to litigation; and better to be subject to the small-claim tribunal than a federal lawsuit.  Plus, if you have a valid fair use defense, it will be much easier and cheaper to file that defense with the Copyright Claims Board (CCB) than with a district court.  

Also, that concern about sending an email, which results in a claim is just plain bullshit.  But if such an anomaly were to happen, the receiver can simply opt out of the CCB proceeding, and that will be the end of the matter.  

TAKASH: Under the CASE Act, however, someone may be found guilty of infringement for a work not yet registered, and find themselves on the hook for $7,500. 

REALITY: Nope.  It’s right there in the statute, which Takash is either too lazy to read or too dishonest to represent accurately.  A complainant may file a claim with the CCB concurrent with an application for registration with the Copyright Office; but the small claim infringement matter will not be considered “active” until the USCO approves the registration.  That application process will take about three months on average. 

Further, Takash is guilty of portraying the CCB as a damages-awarding body rather than an adjudicatory body that must, by law, weigh both complaints and responses.  The provisions called for in the statutes entirely reject the portrayal of CASE as mechanism that solely favors copyright owners with infringement claims.  Likewise, Takash pulled $7,500 out of thin air given that each claim, defense, and potential damage award will be assessed on a case-by-case basis just as they would be in an Article III court.  

TAKASH:  The CASE Act won’t eliminate these trolls – but it will embolden them, and make their business models more lucrative. 

REALITY:   By wrongly describing CASE as a one-sided, damage-award processing unit, this chronic allusion to copyright trolls has been the lead talking point among CASE antagonists.  But the fact is the math just does not add up.  Unlike filing a claim in a federal court as a mechanism to leverage (in trolling cases unwarranted) settlements, the CASE statutes contain anti-troll provisions, including a $5,000 fine and barring access to the CCB for claims made for “harassing or other improper purpose, or without a reasonable basis in law or fact.”  

Couple those barriers with fact that any subject of a claim can simply opt out by checking a box on a form, and the would-be troll will easily deduce that the CCB would not be a fertile hunting ground.  Making real money as a copyright troll (why else would one do it?) depends on volume, and the CCB will, by design, be a hostile venue for filing a volume of meritorious claims, let alone dubious ones.  The Register of Copyrights has the authority to limit the number of complaints a given claimant may file in a year, which means that a large volume of claims filed by a single law firm will raise a red flag. 

Being an effective copyright troll also depends on walking the edge of legality.  So, it is curious that Takash cites the trolling scheme called Prenda Law as a scare tactic for his readers, despite linking to the ArsTechnica story describing how the “masterminds” of that plot were disbarred and sentenced to prison for their conduct.  But that’s the kind of logic we live with today—the reasoning that says, “Look how dangerous copyright trolls are,” and then points to a couple of trolls who were convicted of fraud and money laundering.  As if that story is not going to have a chilling effect on attorneys who might consider trolling as a line of business.  

Of course, who better to serve up such blazing cognitive dissonance than the internet industry itself?  Takash’s post is another perfect metaphor for the “information age,” replete with false statements that one could—ironically enough—look up on the internet.  Meanwhile, the simple reality is this:  copyright is an individual right, and nearly every citizen in America is a copyright owner.  

So, it is no coincidence that the industry with the financial muscle, political influence, and vested interest in weakening copyright is the same industry that shows contempt for privacy, labor rights, competition, journalism, anti-harassment measures, and basic decency.  But that’s what comes from business models designed to monetize everything—which is the real reason these companies are opposed to the CASE Act.  

*Association of College and Research Libraries Association of Research Libraries, Center for Democracy and Technology, Copia, Electronic Frontier Foundation, Engine, Innovation Defense Foundation, Medical Library Association, Organization for Transformative Works, Public Knowledge, Re:Create, R Street