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.   

© 2019, David Newhoff. All rights reserved.

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