Tag: CASE Act

Google-Funded Groups Determined to Sink the CASE Act

A recent anti-CASE Act post by Daniel Takash of the Niskanen Center once again demonstrates why the tentacles of Google-funded “think tanks,” are the informational equivalent of “tobacco industry biologist” or “oil industry climatologist.”  Not only does Takash lead with the unfounded prediction that CASE provides a rich framework for copyright trolls, his post comprises a handful of talking points that are clear misstatements of fact.  Here are my faves…  

TAKASH:  Though it is tempting to streamline the process for compensating creators’ whose work has been infringed, this legislation would make it far easier to abuse a copyright system designed to “promote the progress of science and useful arts.”

REALITY:  This opening statement contains two lies, albeit subtle ones.  The first is an implication that the parties now opposing CASE believe in its purpose and remain open to some revised version of the bill (more on this below).  But the most important omission in that statement is that the CASE provisions would make it easier for claimants AND defendants to find relief in copyright conflicts—including a defendant who, for instance, receives a wrongful DMCA takedown notice.  Don’t believe me? Watch this long video by attorney/YouTuber Leonard French explaining why he sees CASE as a solution for indie creators like his fellow YouTubers.

TAKASH:  First introduced in the last Congress, not even one hearing has been held on the bill. 

REALITY:  Here’s a link to the announcement of the hearing held by the House Judiciary Committee on September 27, 2018. But in addition to this blunt misstatement, Takash doubles-down by alluding to Representatives Lofgren (D-CA) and Buck (R-CO) as “identifying serious issues” with CASE that were “dismissed” by Chairman Nadler (D-NY) and Ranking Member Collins (R-GA).  I would love to know whence this claim comes.  Because, in his paragraph, Takash only links to a letter addressed to the Senate Judiciary Committee subscribed by the usual Google-funded cabal of anti-copyright organizations,* in which there is no mention of Rep. Lofgren or Buck. 

In that hearing of last September (when the Chairman was actually still Rep. Goodlatte), Lofgren’s position can fairly be described as favorable toward CASE with a few lingering questions, and I honestly do not remember any objections of note coming from Rep. Buck.  As of today, neither Representative has any statement about CASE on his/her website, and they clearly did not raise any objections strong enough to keep the bill from sailing out of committee with strong bi-partisan support. 

TAKASH:  This is why it’s critical that we hit the brakes and subject the CASE Act to some much-needed scrutiny. 

REALITY:  The early conversations about a small claim copyright provision are more than a decade old.  The CASE bill itself ramped up as a legislative process a little over two years ago; and it has been crafted and debated in the open, inviting testimony and input from multiple sources, including several of the anti-copyright parties named in the list below.  The difference this time is that, for the most part, Congress is not buying Big Tech’s bullshit that the industry cares about “innocent users.”  

In fact, this “what about the poor users?” argument was presented in that mythical hearing of last September by lobbyists for the Communications and Computer Industry Association and the Internet Association, and both Reps. Jeffries and Collins were highly skeptical that these industries care about users at all.  To Matt Schruers of CCIA, Jeffries responded,  “… with respect to many of the companies that you represent, you have these contracts of adhesion [TOS] where the same internet users that you say you’re here before the committee to defend are waiving their rights to participate in the Article III federal court system.”  

In short, the multi-billion-dollar internet company that is supposedly worried about you being sued by an independent copyright owner has indemnified itself against you ever claiming some form of harm by a major web platform.  This is emblematic of the most pernicious lie of the digital age—that the internet industry has lulled tens of millions of people into believing that these platforms empower individuals.  As my friend Neil Turkewitz put it on Twitter the other day, “the illusion of human agency.”  

TAKASH:  It is unreasonable to expect someone who unknowingly posts a copyrighted photo on their blog, for example, to be familiar with the nuances of fair use. …Post someone else’s picture – or even forward an email without permission – and you are automatically a copyright infringer.

REALITY:  Is it unreasonable to expect people to follow a basic rule they probably learned as very young children?   Do not take what is not yours.  Because by following this simple (no-law-degree-required) guideline, it is not actually possible to “unknowingly post a copyrighted photo on a blog.”  At a minimum, one must execute about a half-dozen mouse clicks to publish a photo on a blog, and unless you are a somnambulist blogger, these conscious steps are what the legal folks call “volitional conduct.” 

Alternatively, if you elect to use photos (or other works) that are not yours and cannot be bothered to learn a little something about licensing, permission, and fair use, then yeah, you’re vulnerable to litigation; and better to be subject to the small-claim tribunal than a federal lawsuit.  Plus, if you have a valid fair use defense, it will be much easier and cheaper to file that defense with the Copyright Claims Board (CCB) than with a district court.  

Also, that concern about sending an email, which results in a claim is just plain bullshit.  But if such an anomaly were to happen, the receiver can simply opt out of the CCB proceeding, and that will be the end of the matter.  

TAKASH: Under the CASE Act, however, someone may be found guilty of infringement for a work not yet registered, and find themselves on the hook for $7,500. 

REALITY: Nope.  It’s right there in the statute, which Takash is either too lazy to read or too dishonest to represent accurately.  A complainant may file a claim with the CCB concurrent with an application for registration with the Copyright Office; but the small claim infringement matter will not be considered “active” until the USCO approves the registration.  That application process will take about three months on average. 

Further, Takash is guilty of portraying the CCB as a damages-awarding body rather than an adjudicatory body that must, by law, weigh both complaints and responses.  The provisions called for in the statutes entirely reject the portrayal of CASE as mechanism that solely favors copyright owners with infringement claims.  Likewise, Takash pulled $7,500 out of thin air given that each claim, defense, and potential damage award will be assessed on a case-by-case basis just as they would be in an Article III court.  

TAKASH:  The CASE Act won’t eliminate these trolls – but it will embolden them, and make their business models more lucrative. 

REALITY:   By wrongly describing CASE as a one-sided, damage-award processing unit, this chronic allusion to copyright trolls has been the lead talking point among CASE antagonists.  But the fact is the math just does not add up.  Unlike filing a claim in a federal court as a mechanism to leverage (in trolling cases unwarranted) settlements, the CASE statutes contain anti-troll provisions, including a $5,000 fine and barring access to the CCB for claims made for “harassing or other improper purpose, or without a reasonable basis in law or fact.”  

Couple those barriers with fact that any subject of a claim can simply opt out by checking a box on a form, and the would-be troll will easily deduce that the CCB would not be a fertile hunting ground.  Making real money as a copyright troll (why else would one do it?) depends on volume, and the CCB will, by design, be a hostile venue for filing a volume of meritorious claims, let alone dubious ones.  The Register of Copyrights has the authority to limit the number of complaints a given claimant may file in a year, which means that a large volume of claims filed by a single law firm will raise a red flag. 

Being an effective copyright troll also depends on walking the edge of legality.  So, it is curious that Takash cites the trolling scheme called Prenda Law as a scare tactic for his readers, despite linking to the ArsTechnica story describing how the “masterminds” of that plot were disbarred and sentenced to prison for their conduct.  But that’s the kind of logic we live with today—the reasoning that says, “Look how dangerous copyright trolls are,” and then points to a couple of trolls who were convicted of fraud and money laundering.  As if that story is not going to have a chilling effect on attorneys who might consider trolling as a line of business.  

Of course, who better to serve up such blazing cognitive dissonance than the internet industry itself?  Takash’s post is another perfect metaphor for the “information age,” replete with false statements that one could—ironically enough—look up on the internet.  Meanwhile, the simple reality is this:  copyright is an individual right, and nearly every citizen in America is a copyright owner.  

So, it is no coincidence that the industry with the financial muscle, political influence, and vested interest in weakening copyright is the same industry that shows contempt for privacy, labor rights, competition, journalism, anti-harassment measures, and basic decency.  But that’s what comes from business models designed to monetize everything—which is the real reason these companies are opposed to the CASE Act.  

*Association of College and Research Libraries Association of Research Libraries, Center for Democracy and Technology, Copia, Electronic Frontier Foundation, Engine, Innovation Defense Foundation, Medical Library Association, Organization for Transformative Works, Public Knowledge, Re:Create, R Street

The EFF Thinks People Are Too Stupid to Understand the CASE Act

As the copyright small claims provision, the CASE Act, continues to acquire congressional sponsors—96 House Members and 14 Senators to date—the EFF is amping up the scare-tactics with blunt messages asking the average internet user if they could afford a $30,000 fine for copyright infringement.  Clearly, the EFF expects this strategy to work because they think people are not smart enough to understand a fairly simple new law.

Facts matter.  Not just the facts about how the CASE Act would function, which anyone is free to read rather than take my word, or the EFF’s word, about it. But more specifically, facts matter in a small claim tribunal the same way they matter in a case brought to an Article III court when considering a claim of copyright infringement.  What the EFF is doing, though, is citing the maximum possible damage award that may be incurred by the most egregious possible infringer in a small claim case, and then using that data to scare folks into thinking that if one engages in “normal online activity,” they could be on the hook for thirty large.  

First, second, and third, the Copyright Claims Board (CCB) is a VOLUNTARY dispute resolution venue.  But EFF is concerned that people are not clever enough to opt out of a tribunal for which they would receive two notices that a rightsholder has filed a claim. Hoping to obfuscate the voluntary nature of the CCB, one of the EFF’s latest tweets reads, “The CASE Act would create a complex and obscure system that big players could get out of and small players could be left owing huge sums of money.”

I don’t know, but it seems more than a little insulting that the EFF thinks the average citizen cannot figure out a “complex” and “obscure” system that will begin something like this:

1) You receive a notice of a complaint in the mail from the CCB.  

a) If you think the complaint might have merit—because yeah, you did sorta use that photo in an online ad without permission—you may wish to opt for resolution at the CCB.  Check the box.

Or

b) If you think the complaint does not have merit, or you want to insist upon adjudication in a federal court, you can opt out. Check the box. 

If that system is really too complex for the ordinary user, shouldn’t we limit that user’s access to the internet before he hurts himself or others?

Meanwhile, the EFF is not clear who it means by “big players,” but people who have valid claims against big players may not bother with a small claim against “big” defendants.  The reason the EFF mentions “big players” in this context is to balance their equation with bullshit of equal weight on the other side, alluding to the “small players left owing huge sums.”  The purpose here is to make the reader’s mind run amok with visions of a copyright owner filing a claim against you because your kids are sharing memes or sound clips on TikTok or whatever.  So, EFF thinks people do not have the basic common sense to follow this logic …

The number of claims that a copyright owner may bring to the CCB in a given year may be limited by the USCO; and for sure, the financial and time resources of the copyright owners are limited.  Remember, these are middle-class creators with bills to pay and demands on their schedules just like you and I—the same so-called “small players” the EFF is supposedly defending.  These are small-business creators, who do not have thousands of dollars and dozens of hours to burn on wasteful claims against non-infringing or non-harmful uses.  

So, just like you and I would do, this class of creators will use their limited resources to take enforcement action against the infringements doing the greatest harm, where the facts are most clearly their side, and where the alleged infringer has the means to pay an appropriate damage award.  This is not the “normal internet user” the EFF is referring to.


But EVEN IF some copyright owner did file a claim, for whatever reason, against an “ordinary user,” who uploaded some material to social media (for example), then I refer you to the earlier rule that facts matter.  The CCB is not there to rubber-stamp claims for $30,000 payouts.  It is there to consider all claims and defenses by both sides, and any damage awards—if awards are warranted—will be commensurate with the nature of the use and potential harm done.  

That range will include decisions that the rightsholder has no claim or that the claim warrants a low-value award; but the CCB will discourage claimants from filing claims against the kind of “users” the EFF is trying to frighten.  Trillions of uploads and shares occur online every day.  No copyright owner or agency of the USCO has the resources, let alone desire, to take enforcement action against the kind of uses EFF is implying in its scary campaign. 

But the EFF doesn’t think you can handle all those “complex” details.  They prefer to paint a frightening narrative in which you might think you need a law degree and two years of practice to understand the provisions of the CASE Act. You don’t.  And for users of works who should be considering copyright, this post explains why not infringing is also not very difficult.  

The People the CASE Act Critics Don’t Want to Mention

“We are all authors now.”  This has long been a talking point of anti-copyright organizations.  I have credited it to Gigi Sohn, co-founder and former director of Public Knowledge because she kept tweeting it during House Judiciary Committee hearings on building copyright consensus in May 2013; but I don’t really know who said it first.  I only know that it’s a popular theme that may finally come around to bite the hands that tweet it.

Most of the time, my friends and I respond to this bumper-sticker phrase by criticizing the way in which it is false—namely that just because everyone posts stuff online, this does not make everyone authors of expressive works such that it demands a wholesale reversal of the way we think about copyright law.  In plain terms, just because 1.2 billion of us are all chattering, clicking, and sharing on Facebook and Twitter, this does not make the professional creator’s copyrights worth any less than they were before social platforms existed.

On the other hand, there is an extent to which that phrase has an element of truth to it.  Internet platforms and digital electronics have created opportunities for new kinds of authors, new forms of expression, and new avenues for entrepreneurism.  For several years, the copyright critics of the world have alluded generally to these new opportunities as a reason to prevent copyright enforcement online.  And they got away with this proposition by painting a false portrait of who copyright owners really are.

With well-funded resources to flood the blogosphere, the critics have bludgeoned the idea into peoples’ heads that the only copyright owners are either corporate entities or already-wealthy creators, who really should let small infringements go.  This false picture of the copyright-owner (and infringer) landscape has enabled entities like FFTF, EFF, and PK to use the kind of shorthand that is so effective on social media, sowing division between Creators and Users.  

But as these same digivangelists have preached in the past, many Users are Creators; and to the extent they’ve been right about that, a lot of those User/Creators are also—you got it—copyright owners.  What EFF, PK, FFTF et al are not telling these constituencies is that many of the “new” creators empowered by the internet may actually have a lot to gain from the copyright dispute tribunal that will be established by passage of the CASE Act. 

The popular YouTuber who has a clip appropriated by a commercial entity can avail himself of the Copyright Claims Board (CCB).  The budding cartoonist who is just building a following via Instagram—and who never thought about copyright until she saw one of her characters used without permission—can avail herself of the CCB.  The kitchen-table startup who makes unique products to sell on Etsy may find a remedy via the CCB. 

A key factor in this particular context is that many creators of these online works do not register copyrights, and often with good reason.  And while the CASE critics portray it as a negative that a rightsholder can initiate a claim via the CCB concurrent with filing a registration application, this is actually a significant advantage for the kind of entrepreneurial creators they claim to support. (See post here for more detailed explanation.) 

As the entrepreneurism fostered by the internet continues to grow, the “new” creators have started to discover what the “old” creators already knew—that if you make something cool, somebody will probably try to take it for themselves.  EFF, Public Knowledge, and Fight for the Future are probably hoping their creator constituents don’t notice this logical flaw in their campaign against the CASE Act.  But regardless of what they are thinking (or not thinking), the fact is many of you Users really are Creators and, therefore, copyright owners.  

And that brings me to a doozy of a point these critics REALLY don’t want to tell anyone.  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.  

Perhaps on this point most of all, the EFF, FFTF, PK would rather not talk about such pesky details because they might start to look as irrelevant to copyright policy as they are chronically dishonest about it.  Let’s face it.  For all the noise they make on subjects like wrongful DMCA takedown, what do they really do for any of those users other than capitalize on the problem as a way to maintain their own relevance and fundraising?  CASE Act provides an accessible, affordable remedy. And maybe that’s the thing the critics hate most of all.