Senator Wyden Needs to See the Bigger Picture in the Small-Claim Copyright Bill

In 1990, the Port of Portland received a new container crane—the largest available at the time—built by Hyundai Heavy in Seoul.  When the crane arrived, balanced across the beam of this massive ship, I was on site because I happened to be working for a small, Seattle-based industrial production company hired to make documentary films about the crane’s rigging and installation.  This was my first time shooting film from a helicopter—one of those bubble-canopy Bell choppers like you see in Vietnam or Korean war footage—and a hell of a way to find out whether or not I was afraid of heights.  Happy to report that I did not throw up on Portland’s brand new crane. 

As economically vital as that container crane must be to the City of Portland (and the U.S. in general), I would ask that Oregon’s Senator Wyden consider the economic ripple effect associated with the production work we were doing back then and how our incomes for that labor were predicated on copyrights in the audio-visual works.  Then, I would ask that the senator recognize that in the current market, rampant infringement of a similar company’s creative work dramatically outpaces a small-business owner’s ability to protect the work. 

When a Member of Congress stands alone in opposition against the tide, it is fair to ask whether he is exhibiting leadership or merely being a stubborn outlier wielding power because he can—and because the constituency being rebuffed has been assessed to be of little value at the ballot box.  I say this because Senator Wyden’s solitary hold on the CASE Act, which would establish a small-claim copyright alternative for entrepreneurial creators, is likely the only barrier left to this bill becoming law.  

The Bias of One Individual Should Not Shape Public Policy

Absent a clearly articulated, merit-based argument of opposition against the majority view, a representative’s moral obligation should be to the majority.  So, I would ordinarily assert that Senator Wyden should have to explain in his own words (i.e. not the talking points of the tech industry) what truly vexes him about the prospect of passing the CASE Act.  But so far, the senator has yet to utter any objections that color outside the lines drawn by the tech industry and the hyperventilating copyright skeptics–and this can probably be explained quite simply:  because Ron Wyden fundamentally does not like copyright.   

The senator is, of course, entitled to be an anti-copyright ideologue the same way some of his colleagues in the Senate might be ideologues about foreign policy matters.  But ideologues tend to be generally naïve (i.e. wrong) about how the world actually works and usually stand on shaky ground with respect to history.  For instance, when Senator Wyden reiterates vague and unsupportable predictions that the CASE Act might “chill speech,” he oversimplifies the historic evidence that copyright enforcement and speech have managed to coexist in harmony since the United States was founded.  

Moreover, the senator has a ring-side seat as a witness to the destruction that has been wrought by overemphasis of the internet industry’s self-serving, and inaccurate, framing of speech.  In fact, Wyden’s own privacy bill, the Mind Your Own Business Act, recognizes that the everything-online-is-speech narrative, as promoted by Silicon Valley for the last 20 years, has had disastrous consequences for society so far.  Yet, seemingly unaware of any dichotomy in his thinking, the senator merely echoes the industry’s scare-mongering bullet point that “some kid posting a meme will be fined thousands of dollars if we pass the CASE Act.”

Senator Wyden knows how to read a bill and knows that passing CASE into law does not change the scope or nature of copyright infringement; and he can certainly see that the hypothetical meme-poster is very well protected by a number of safeguards in the bill—not the least of which is that respondents must voluntarily submit to the small-claim alternative.  At the same time, let us not get too hung up on the value of all online “expression” in light of the fact that, at any given moment, there is a better than 50% chance some meme, or whatever, was created by a foreign agent hoping to disrupt our politics. 

It is a reality of procedure that a single senator can stop legislation in its tracks.  And if this is truly an act of leadership in which the senator can present a nuanced and original argument based in his/her own insight, then we have little choice but to admire the courage of that conviction.  But here, Senator Wyden’s opposition to the CASE Act connotes something between raw, unexamined bias and a cynical fealty to a predatory industry that does not deserve congressional coddling.  Neither rationale is grounds for one elected official to stand alone against the volume of consensus that has coalesced around this legislation.  

CASE Supports Middle-Class Entrepreneurs and Best Practices

As a practical matter Senator Wyden’s singular opposition to CASE waves a dismissive hand at his own constituents—and millions of Americans outside Oregon—who rely on copyright in their small-businesses the same way Portland’s coffee bars need a steady supply of beans.  The CASE Act may seem like a small matter in the scheme of things; but for the creative entrepreneur trying to keep her work from being ripped off in a market that innovates theft at a staggering pace, there is nothing small about it.  Protecting copyrights can be the difference between healthcare and no healthcare or, at the very least, having the money to patronize one of Portland’s coffee bars.  

Today, a photo/video production company filming at the Port of Portland would have access to tools we did not have in 1990.  A small HD camera on a drone can get better footage in a fraction of the time, and at lower cost, than anything I shot with a 16mm camera from a helicopter.  But I would note that in such a potentially hazardous location, with big equipment and personnel moving in all directions, everyone should want that drone operator to be licensed and well-covered by insurance.  This is just one example of the type of cost that must be covered by the fees a producer can charge for creative work—fees that are backed up the enforceability of copyrights.  

Alternatively, when copyrights are unenforceable and creative work is consistently devalued, corners are cut.  Safety measures, licensing, releases, and permissions of all kinds tend to disappear from the production of creative works for all but the largest producers.  So, while Senator Wyden may have his own biases against copyright in general, perhaps he will consider the more complex economic implications of enforcement for small-business operators and acknowledge that there is a much bigger picture implicit in the small claim alternative.    


Photo by mandritoiu

© 2020, David Newhoff. All rights reserved.

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