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.
© 2019, David Newhoff. All rights reserved.