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