For about an hour yesterday, I took a break from the drama unfolding in the Senate Judiciary Committee to tune into the House Judiciary Committee hearing on the CASE Act (H.R. 3945), which would create a Copyright Claims Board at the Copyright Office designed to adjudicate small copyright claims. It was almost hard to believe these two hearings were happening in the same country, let alone the same building. In particular, there was an undeniably palliative effect in watching Representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA) articulate a bipartisan commitment to protect America’s independent and middle-class authors of creative works.
Specifically, both Congressmen were very pointed in key responses to the two witnesses appearing on behalf of the tech-industry, whose opposition to CASE has, thus far, resulted in a handful of frankly disappointing amendments to the current discussion draft of the bill. Matthew Schruers* of Computer and Communications Industry Association (CCIA) and Jonathan Berroya, General Counsel at Internet Association (IA) were yesterday’s faces of Big Tech’s opposition to the bill, which relies principally on the assertion that the system will be vulnerable to abuse by copyright trolls. (Trolls are the ambulance chasers of IP law, who use false or flimsy claims to frighten alleged infringers into settling claims, although the scope of the “troll problem” tends to be exaggerated by a range of parties with an interest in criticizing copyright.)
Let’s not equivocate. The alleged concerns about CASE creating a new forum for copyright trolls is demonstrably absurd and is disingenuously asserted by internet giants , who truly have no skin in this particular game. The Copyright Claims Board, as proposed, entails far too many safeguards on its use to be an attractive venue for a would-be troll.
For instance, there is a provision which denies access to the CCB to any party who consistently brings false or flimsy claims—a limitation that does not exist in an Article III court system. Further, as mentioned in past posts, because the CCB is expert in, and focused on, copyright law only, it will be a much harder forum in which to present a weak or false claim than a federal court. And finally, a respondent (alleged infringer) can opt out of the CCB upon written notice of a claim.
But unsatisfied with all those safeguards, the lobbying efforts of IA and CCIA have also resulted in a provision to limit the number of valid claims that a rights holder may bring to the CCB to ten per year. As evidenced by witness Jenna Close, representing photographers and visual artists, this “anti-troll” concession is arbitrary in light of the fact that she noted 18 infringing uses of her work by commercial entities in yesterday’s testimony. That the Internet Association, representing Facebook, Google, eBay, and other billion-dollar corporations, should even have a say in limiting Ms. Close’s remedy options to roughly half the infringements of her work is an aberration of reason and justice. But as she said to the committee, “Ten is better than nothing.”
Despite the Politics, Key Members Are Clear
Unfortunately, the political reality is that the CASE Act is not going to move out of committee unless these industry organizations either endorse the bill or amend their position to one of neutrality. That they have anything to say at all is frankly galling given that the tech and internet companies are shielded in several ways (not the least being their size) from being targets of small infringement claims, but as usual, these industry representatives claim to be defending the interests of their users (meaning all of us), who may be unfairly targeted by presumptive abusers of the CCB. It was in response to this general posture that Representatives Collins and Jeffries homed in. Anyone who quarrels with Silicon Valley on policy is very familiar with the list of hypothetical disasters that will befall the internet (and all mankind) if we enforce copyrights, or any rights, in the digital age. Doug Collins was pellucid on this matter …
“From the side that says it’s maybe not needed, I hear a lot of hypotheticals. In this room today, there is not a hypothetical. There’s Miss Close.”
Then, alluding to the creators in the gallery who appeared in support of CASE …
“These are not hypotheticals. These are real people who have real issues with real infringement on their work. One of the things that’s great in DC is that we’ll always find the hypothetical that says you can’t. I’m about finding hypotheticals that say those who create mean something and those who create have value and have infinite worth. If we ever get to the time when the hypothetical wins out over the creator, then the creator is dead. We’re looking for solutions. If a hypothetical gets us to a solution, wonderful hypothetical. If a hypothetical is just a roadblock in the way, it’s time for a bulldozer.”
Even more pointedly, Hakeem Jeffries, lead sponsor of the bill and the next Member to question the witnesses, asked Matt Schruers whether the concessions already made in CASE were not sufficient to allay his constituents’ concerns about hypothetical trolling and abuse. Specifically, Jeffries refers to a concession (one I believe cedes too much) that allows a party to opt out of CCB tribunals with a single, blanket statement—meaning no corporation with even mediocre legal counsel will ever be party to one of these adjudications.
To this, Schruers conceded that corporate entities would be well shielded but then tried to raise the specter of the hypothetical internet user being defenseless because he would not know to avail himself of this opt out provision (i.e. the bill isn’t toothless enough). In response to the premise that the CCIA represents users at all, Jeffries stated …
“I get all of this due process language, and it sounds flowery, and it’s beautiful. But 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. So, it becomes a little difficult I think for many of us to take some of these concerns as seriously as they’re being projected.”
Amen. Copyright advocates have seen this tactic employed repeatedly: the internet giants hide behind the interests of users when it suits their policy agenda, but their own legal structures and terms of service make clear that users have almost no legal remedies if their complaint is with a platform itself. Whether the subject is copyright or any other policy issue, Rep. Jeffries deserves kudos for hitting this nail squarely on the head. It may be true that we all use the internet, but that will never mean that our interests are identical to those of Google, Facebook, Twitter, et al.
The CASE Act addresses a longstanding problem for independent creators who deserve to enforce their rights in relatively low-level (but meaningful) infringement claims that are simply too small to justify the cost of federal litigation. My takeaway from yesterday’s hearing was that Committee members largely understand the issue, want to support this large population of independent creators, and hope to pass the bill before November. Even Representative Zoe Lofgren (D-CA), who tends to be consistently critical of copyright, endorsed the need for CASE. Near the end of the hearing, Chairman Issa asked Schruers and Berroya, “What will get you to yes?” I understand that’s a political reality, but it shouldn’t be. The IA and the CCIA do not honestly represent anyone—either creators or internet users—who have any stake in this bill. They’re just inconveniently too powerful to ignore.
Some may note that organizations like EFF, who claim to speak for users, were not present for the hearing; but on that subject, readers who are unsure about the extent to which these organizations tend to speak for industry will want to watch Frank v. Gaos, recently granted cert at the Supreme Court. It relates directly to the issue of internet industry (and other industry) accountability, and there will be more to say about this case in future posts.
SCOTUS will hear arguments on Halloween Day, but in sum, the suit challenges the regime whereby a corporate entity (or industry) loses a legal battle to the extent that they pay a settlement in a class action, but then the settlement money winds up funding organizations that advocate policy favorable to the corporation or industry at issue. With regard to internet policy, these cy pres awards have funded the Electronic Frontier Foundation, think tanks, and academic works that just happen to advocate policy favorable to the internet industry. More to follow very soon. (Post added on 10/30.)
*This is the same Matthew Schruers who pitched the brilliant concept that it’s okay to steal copyrighted content because the money saved will be spent elsewhere in the economy.