Tag: CASE Act

Where Are All the Trolls at the CCB?

A lot of world-shaking events have occurred since 2018, when the CASE Act was introduced for the purpose of creating a small-claim copyright alternative, now known as the Copyright Claims Board (CCB). After a pandemic, an attempted coup d’ etat, and other jaw-dropping moments, it’s easy to forget all the ululating noise produced by the Electronic Frontier Foundation, Fight for the Future, Public Knowledge, Mike Masnick, the Niskanen Center, Sen. Wyden, and Computer & Communications Industry of America, et al. to warn the public about the perils of the CCB. The loudest talking point in that cacophony was the unfounded prediction that the small-claim tribunal would be an ideal forum for copyright trolls. For example…

“The CASE Act would give copyright trolls a faster, cheaper way of coercing Internet users to fork over cash “settlements,” bypassing the safeguards against abuse that federal judges have labored to create.”  – EFF, April 2018 –

A “copyright troll” is an attorney who consistently files questionable or unmeritorious claims with the intent to extract settlements from alleged copyright infringers. In response to predictions that the CCB would be a perfect venue for trolling, I and others responded by highlighting the many safeguards in the CASE legislation that were written specifically to anticipate and prevent abuse of the tribunal. In fact, that EFF quote above was a double lie because safeguards against abusive or unmeritorious claims do not easily prevent trolling in federal court, which is why trolling happens in those venues, although not nearly so often as the anti-copyright hecklers like to claim.

CCB Safeguards Triggered for the First Time

As Jonathan Bailey describes in a recent post on his blog Plagiarism Today, the CCB has, for the first time, invoked its authority to bar an attorney from filing small claims for one year. To be clear, based on Bailey’s description, the attorney in question does not deserve the description “troll,” let alone the kind of predatory actor copyright hecklers refer to when they use that term.

Instead, this attorney triggered the safeguard provisions by filing several unmeritorious claims against Amazon, which was improperly named, and foreign resellers, which cannot be named in CCB claims. As Bailey notes, the effort is understandable because, “Many creators have complained that marketplaces like Amazon, Wish, Temu and so forth have become havens for infringement.”

My point here is not to comment upon or critique this one attorney’s intentions or errors, but to emphasize that the sanctions he activated at the CCB are the same safeguards written to prevent copyright trolls from even using the tribunal, let alone abusing it. As noted in this post, the CCB is a cost-prohibitive venue for the would-be troll due to the limited number of claims that may be filed in a single year, the potential fines for intentional abuse, and the possibility of being barred from the CCB for a year.

During the roughly two years between introduction and passage of the CASE Act, a typical response to the statutory safeguards was, “Well, we can’t trust the Copyright Office.” This familiar, dimwitted tactic is indistinguishable from those who say “We can’t trust the DOJ” in response to meritorious indictments against the former president. Meanwhile, the CCB, in demonstrating that it will enforce safeguards as the law requires belies all those scary headlines predicting that sharing memes on social media would result in a tidal wave of $30,000 fines.

The anti-CASE messaging has since evaporated into the digital ether, of course, but at moments like this, I think it’s fair to say that every time these same hecklers predict anything about copyright law, they should be ignored. I don’t mean that their views should be heavily scrutinized. I mean ignored. They lie about basic facts. They use fearmongering as a primary tactic. They claim to represent interests they do not represent. And they battle chimeras to stay relevant and raise funds. On that last point, expect to see the EFF look for an opportunity to litigate the constitutionality of the CCB—an effort that will likely fail but, as I say, will make good material to promote with a “Donate Now” button.

First Final Determination by the CCB is Hardly What the CASE Act Critics Predicted

Remember all the noise coming from anti-copyright groups leading up to passage of the CASE Act? According to the EFF, Public Knowledge, Fight for the Future, the usual assortment of anti-copyright academics, and Senator Ron Wyden, the copyright small claim alternative would open the floodgates for abusive claims. They predicted CASE would be the ideal venue for “copyright trolls,” and that it would be open season on Grandma for naively sharing memes on social media. (Not that there aren’t memes Grandma should be dissuaded from sharing. Oy!)

Granted, the Copyright Claims Board (CCB) has only been operating for about 8 months, but so far, not only have no grandmas been named respondents in claims (at least not in their capacity as grandmas), but the CCB is predictably nothing like the damage award processing center the critics described in their efforts to kill the initiative. On the contrary, about half of all claims to date have been rejected for non-compliance with the CCB (legal and administrative errors).* So, there is a bit of a learning curve to be smoothed out over time, but my point is that the CCB is hardly rubber-stamping demands for $30,000 as the fear-mongers projected during the legislative process.

But the main reason I wanted to post something today is that, interestingly enough, the first case to reach a final determination at the CCB resolved an issue that copyright critics have been complaining about forever—wrongful DMCA takedown. In July 2019, I wrote that the CASE critics did not want to mention the provision in the new law which allows a plaintiff to file a complaint for an allegedly wrongful DMCA takedown notice. Back then, I wrote . . .

Their favorite victims—the targets of misused DMCA takedown provision—will have an unprecedented remedy in the provisions of the CASE Act.  That’s right.  You might make a fair use of a work that is removed by DMCA; or have material taken down by a party misrepresenting itself as the rightsholder; or have commentary or parody removed for reasons that have nothing to do with copyright.  And now, instead of just being a statistic for the EFF to blog about, you can affordably pursue a claim against the party for misuse of DMCA via the CASE Act.  

Well, that’s exactly what happened in Michael Flores v. Michael Mitrakos, and the claimant won. No damages were sought, and the parties agreed to settle and dismiss further proceedings with a “Don’t do that again” determination, but the point is that a legit victim of wrongful takedown had a remedy at the CCB and used it. One would think the folks who’ve been screaming “DMCA takedown abuse!” for years would applaud this outcome—or at least maybe apologize for all the smack they talked about the CASE Act. But I think it’s gonna be crickets over there if the CCB actually produces good resolutions.

*NOTE: This was originally published with a slightly different stat which has been amended for better accuracy.

On Copyright, the EFF Will Say Anything to Scare You

Are you gifted in the art of bullshit, but the popular conspiracy theories just aren’t for you? Do you enjoy riling people up about threats that are demonstrably false, but you just can’t get comfortable with QAnon or election deniers? Well, maybe you should consider an exciting career with the Electronic Frontier Foundation writing about copyright law. It seems they’re always looking for eager young folks with good writing skills and no scruples. For instance, you can learn how to write blog posts like Stop the Copyright Creep, posted this week by Katherine Trendacosta, and which begins as follows:

In 2020, two copyright-related proposals became law despite the uproar against them. The first was the unconstitutional CASE Act. The second was a felony streaming proposal that had never been seen or debated in public. In fact, its inclusion was in the news before its text was ever made public. The only way to find it was when the 6,000-page year-end omnibus was published. We want to make sure that doesn’t happen again.

Here’s how that opening paragraph would read if it stated the facts and concluded with a more honest declaration of EFF’s position:

In 2020, two copyright–related proposals bills became law. despite the uproar against them. The first was the unconstitutional CASE Act. The second was a the Protect Lawful Streaming Act (PLSA). felony streaming proposal that had never been seen or debated in public. In fact, its inclusion was in the news before its text was ever made public. The only way to find it was when the 6,000-page year-end omnibus was published. We want to make sure copyright enforcement does not happen anymore. that doesn’t happen again.

That the CASE Act is unconstitutional is a highly speculative opinion which the EFF is free to argue in court one day, and it probably will. That there was much “uproar” against these bills outside the tiny community of anti-copyright wonks is hyperbole (In 2020? Really?). The implication that the felony streaming bill was quietly snuck into law behind closed doors is just a lie. And, of course, the hyperventilating tone meant to scare readers is standard EFF style, which often makes the organization indistinguishable from any other conspiracy-monger.

The reason I let that statement stand about news being ahead of the text of the felony streaming bill is because it might be half true. The text of the Protecting Lawful Streaming Act (PLSA) was introduced on December 10, 2020, so it definitely appeared late in the session—but not because its provisions came out of the blue, were secretive, or were written without debate. On the contrary, one reason the bill was introduced so late is that various stakeholders were still debating the language into December. And if the EFF did not directly engage at the time, there is no way it was unaware of these negotiations because the issue itself was hardly new.

For more than a decade before introduction of the PLSA, various parties had been addressing the fact that large-scale piracy remained a misdemeanor under the statute rather than a felony as long as the pirate enterprise streamed material rather than made it available for download. Here’s Senator Klobuchar referring to the issue in 2011 by way of analogy during a hearing about cyber security:

I have been working in the area of some of the streaming issues to try to come up with a way with a number of the other Senators to acknowledge that if someone is standing on a street corner and sells DVDs that are over $2,500 that we already know is a felony, and right now if you do it, if you have a business and you are illegally selling anything—movies, books, music—and you do it maybe $1 million and you are profiting—you have to profit from it under our bill—it is still a misdemeanor. And so we are trying to fix that without, you know, hurting anyone’s rights or teenagers that are simply trying to share some information

Or you can link to just one House IP Subcommittee hearing in which felony streaming was being discussed in 2014. “We should consider today whether there is a need to clarify that felony infringement includes infringement by streaming,” stated Chairman Coble. Or you can review a summary of the legislative history at Copyright Alliance. Or, oddly enough, my satirical post A Guide to Critiquing Copyright in the Digital Age was a response in 2015 to an article published in The Hill complaining about the idea of felony infringement by means of streaming.

The desire to close what many copyright owners, the DOJ, IPEC, the FTC, et al. considered a legal loophole had been present in both official and unofficial records for quite some time before introduction of the “secret” bill in 2020. And unless you’re planning to engage in mass piracy by building an illegal streaming platform, you probably have little reason to know what PLSA is or why it exists.

The implication by EFF that PLSA or CASE or the other copyright provisions mentioned in the blog are somehow a threat to free speech is as unfounded as the allegation that these proposals were ever clandestine. Yet, Trendacosta writes, “Because so many copyright-related bills involve proposals that would harm lawful free expression, they are not the kind of controversy-free proposals that belong in such legislation.” Here, she means that PLSA and CASE should never have been attached to a must-pass omnibus spending bill at the end of the year.

Notably, copyright proponents who worked on the legislation were not exactly thrilled with the rider outcome either; but you know why it happened that way, especially with the CASE Act? Because Senator Wyden, had a solitary hold on that bill, and in the roughly nineteen months between introduction of CASE and December 2020, he neither engaged in good-faith negotiation nor publicly articulated a realistic objection to its provisions. In fact, after telling Oregon constituents in December 2019 that he saw a path to compromise, he then asked for several poisoned pill amendments, and failing that, simply ghosted with his hold intact.

So, if we’re going to talk about shenanigans on the Hill and things that should never happen, I’m of the opinion that one senator should not be allowed to single-handedly kill bi-partisan supported legislation without very clearly and very publicly articulating his passionate and well-reasoned opposition. And I believe Senator Wyden agrees because he co-sponsored legislation in 2011 based on this same general principle.

Meanwhile, aside from the fact that copyright’s alleged conflict with speech is a construct of anti-copyright ideologues—one that finds little purchase in history or law—I would love to know what EFF imagines could be more “controversy-free” than copyright legislation? It happens to be one of the very few subjects where we see Democrats and Republicans collaborating and voting in large bi-partisan numbers.

That is not only significant in the current climate, but I am told by at least one colleague who has worked on the Hill in less turbulent times that nothing controversial survives the frenzied process of attaching riders to must-pass legislation. “The leaders of both parties from both Houses have to agree, as well as the chair and ranking members of both the House and Senate Appropriations Committees,” he says. So, that seems like a resounding override of Senator Wyden’s hold and a confirmation that the hold was the only reason the copyright bills were passed in this manner.

What I think EFF really means to say is that because they fervently believe that copyright enforcement is always a threat to speech, they don’t like it when nobody on the Hill agrees with that premise. And these days, it is just so damn easy to allege that when Congress or a court or an investigative journalist or a federal agency doesn’t agree with your trumped-up narrative (it writes itself), then some dark arts must clearly be at work. So, if you’re into sowing conspiracies but can’t go full InfoWars, writing about copyright for the EFF just might be your next career move. Good luck!

Photo by: mrwed54