I have covered the development of the CASE Act in depth. But because the usual gang of anti-copyright zealots began screaming on social media at the news that the small-claim copyright provision was attached to the omnibus spending bill that passed last night, I offer some responses to those allegations about CASE that are factually untrue as well as the predictions that are logically unsupportable. (In a separate post, I will discuss the felony streaming bill that also passed as part of the spending bill.)
CASE Facts Anyone Can Check Themselves
The CASE Act has been the subject of public Congressional consideration, negotiation, debates, and votes for almost two years. And the more general proposal of a copyright small claims solution was in discussion for several years before that. The few objectors’ cloak-and-dagger narrative is a favorite tactic used by just about any party that doesn’t like a particular proposal, and it is demonstrably false in this circumstance. If CASE has been “sneaking” its way through the legislature, it has been doing so in broad daylight and moving very slowly. Because here are some basic realities that readers are free to verify:
- the idea of creating a small-claim copyright provision has been discussed in copyright circles and on Capitol Hill for more than decade;
- the CASE Act specifically has been the subject of public Congressional consideration over and over;
- the CASE Act passed the House 14 months ago with a vote of 410-6;
- CASE Act received bipartisan co-sponsorship from nearly one quarter of the Senate;
- the CASE Act is a voluntary alternative dispute resolution and is, therefore, not a violation of any party’s right to due process;
- the CASE Act has nothing to do with Hollywood or other Big Media, which has no interest in small copyright claims because duh; and
- the CASE Act would probably be law already, if Senator Wyden had not put a hold on the bill and refused to engage in any discussion that would not have poisoned its core purpose.
On that last point, it cannot be overstated that the fully transparent, normal legislative process was stopped dead in its tracks by Senator Wyden’s hold. Although CASE critics have tried to paint the senator’s recalcitrance as an act of courage, in reality, he pandered and condescended to his own constituents in Oregon who wanted the bill passed, blew a lot of hot air about erroneous and generalized concerns, and then refused to negotiate a single good-faith amendment to the bill. His only proposals would simply have gutted the intent of the bill. Not only was Wyden wrong about CASE itself, but he hyperextended the purpose of Senate holds, which he once personally advocated should last no longer than 24 hours.
Sane Predictions or Scare Tactics?
Anyone with a brand and a following can make a prediction without backup because, of course, predictions cannot be disproven by evidence. Nevertheless, the ACLU, the EFF, Mike Masnick, Public Knowledge, et al have predicted that the voluntary tribunal established by CASE, the Copyright Claims Board (CCB), will be a venue attractive to copyright trolls,* and they once again invoke the generalized bugbear that CASE will chill free speech online.
Regarding copyright trolls, I have explained in as much detail as I can contemplate (see posts here, here, here, and here) why the Copyright Claims Board would be a money-losing forum for the unscrupulous attorney—namely, that the bill contains multiple anti-troll barriers, which no Article III court can provide. While the critics lazily allude to trolling in general and predict, without supporting arguments, why the CCB would increase trolling, I explain in this post about an actual troll litigation why the CCB is more likely to decrease the volume of trolling by providing an alternative for the kind of plaintiffs who are often the targets of trolls in the digital age.
The copyright skeptics are unlikely to admit that the massive increase in online infringement has been a primary, if not the primary, driver of increased troll-like litigation. But as the judge in the case mentioned above wrote, “Misuse of intellectual property has become a pervasive problem in the internet era and one that is especially pernicious for freelance photographers like [the plaintiff], who often lack the resources to pursue claims in court.”
The critics are free to rebut the theory that CASE would decrease trolling, citing evidence and applying reason, but they do not. Instead, they merely asked Congress and the public to take their word for it, under the imprimaturs of their brands, that CASE will increase trolling because they say so. And in that same vein, anyone who takes the “chill speech on the internet” claim seriously at this point is blindly submitting to the undeserved street cred of parties like the ALCU without actually thinking the issue through very clearly.
There is a reason why the “online speech” narrative has proven to be incoherent at best, and nation-destroying at worst. Constitutional scholar Mary Ann Franks sums it up adroitly in her book Cult of the Constitution, in which she describes both the ALCU and the EFF in particular as “first amendment fundamentalists,” who “aggressively embrace” the “marketplace of ideas” theory of free speech. “According to the marketplace of ideas theory,” writes Franks, “unfettered competition will eventually lead to the truth.” Can anyone seriously claim that truth is winning so far?
On the contrary, we have watched the effects of laissez-faire internet moderation cause devastating, potentially self-annihilating harm to the very essence of truth, and we have largely ignored how often speech is silenced for people outside the privileged bro-culture of Silicon Valley. But without digressing fully into that complex subject in this post, suffice to say the premise that all online activity must be accorded first amendment-like deference is a profoundly failed theory in general, and even if this were not plainly true, the act of legitimate copyright enforcement is not in conflict with the first amendment.
I know what the classic frightful scenario is, but in the spirit of the season, let me say that Grandma will not get run over by the CASE Act. Neither she, nor anyone else, will innocently share a meme on Facebook and find themselves mysteriously on the hook for a damage award that was rubber-stamped by the CCB. That fiction is blatant fearmongering by a multi-billion-dollar industry that benefits when rightsholders have as a few remedies as possible for infringement of their works. Meanwhile, the small-claim provision does exactly what this same industry claims it wants rightsholders to do about enforcement, which is to direct their complaints at primary parties who have allegedly infringed.
The CASE Act provides a badly needed, though limited, remedy for independent creators who make modest livings from their creative work. A copyright owner must file meritorious claims, pay filing fees, and may only file up to ten claims per year; and the respondent must voluntarily submit to the ruling of the CCB. So, the limitations for the average copyright owner, making perhaps $30-40,000 annually from her creative work, are quite clear: she only has the resources to try to remedy the most harmful infringements, which will often be infringements by commercial users who dodged the responsibility of licensing her work. There is nothing insidious, secretive, or unconstitutional about that.
The last-minute efforts to oppose to the CASE Act by a small corner of anti-copyright special interests presented a slurry of unsupported, implausible, and discredited claims about the bill, mixed with process arguments that are misleading lies of omission. The truth is the bill would likely have already been signed into law a year ago if not for the hypocritical use of the Senate hold procedure to prevent further debate or voting on the proposal. Fortunately, the overwhelming bipartisan support for CASE overcame all that and may finally provide entrepreneurial creators a remedy they have been seeking for a very long time.
*Copyright trolls are attorneys who engage in unscrupulous practice and/or bring unmeritorious claims in order to frighten defendants into settlements, but copyright critics also exaggerate the scope of the “troll problem.”
© 2020 – 2021, David Newhoff. All rights reserved.