Tag: CASE Act

How to Avoid Copyright Infringement

After the CASE Act passed the Senate Judiciary Committee* on Thursday last week, the critics hit “Publish” on the blogs they had written with the intent to scare users—doubling down on the narrative that the Copyright Claims Board (CCB) for small claims will lead to a whirlwind of infringement judgments against ordinary and innocent users.  I and others have explained the many technical reasons why this allegation is unsupportable under the new statutes, but folks out there will still be frightened by blogs like the one from the oxymoronically-named Center for Democracy and Technology.  Stan Adams writes …

“You may be thinking, ‘I won’t infringe copyright, I’ll just make sure not to use any protected works.’ Here’s why that will not be as easy as you might think. First, copyright is automatic. This means that when someone snaps a new photo, they immediately hold the rights to it. If you found a photo or other work that you wanted to use, you would need to get permission from the rightsholder. In some cases, determining who to ask is relatively easy.”

Actually not infringing copyright is easier than Adams wants you to think.  Believe it or not, many of the most prolific authors and users of works since 1978 (when copyright became automatic) have been not infringing copyright rather effectively throughout their careers.  Not just the wealthy stars of the entertainment world, but regular middle-class creators (like the ones the CASE Act is designed to help) have been not infringing one another’s copyrights in the production and reproduction of millions of works.  How they achieve this miracle is really quite simple, and the basic steps are implicit in Adams’s paragraph above.  To avoid infringing copyrights, do the following:

Step 1:  Do not use work that is not yours.

Step 2:  If you want to use work that is not yours, do a little homework and make sure you have a plausible legal basis for using the work; or obtain a license for use of the work.

Step 3:  If you are unable or unwilling to make the effort in Step 2, return to Step 1.  

When the CDT, EFF, et al write posts like the one by Adams, there is a sleight of hand afoot (if you will).  He is purposely, albeit subtly, conflating the unintentional user (e.g. someone reposting a meme) with the intentional user (e.g. a blogger or commercial entity posting editorial or promotional material).  It is neither affordable, nor technically possible, under the CASE provisions for a small claimant to go after myriad unintentional users like re-tweeters et al.  But the intentional users, who will be the subjects of claims brought via the CCB, really can avoid infringing by following the basic guide above. 

Whether you are advertising a business, making a political statement, promoting an event, writing a blog, etc., the moment you consciously decide you want a photograph, illustration, video clip, or music to accompany the message, your responsibility to not infringe copyright is both reasonable and entirely achievable.  There are many low-cost options to avoid infringing copyright, including, in some cases, asking the copyright owner for permission to use the work.  I know.  It’s downright uncivilized.  Permission.

One reason these organizations get away with scaring people about CASE is that we have normalized copyright infringement (to say nothing of permission in other contexts) to the extent that infringement is portrayed as a form of civil disobedience rather than what it usually is—a complete lack of courtesy toward individual people.  Because what happens in real life is that some business owner, perhaps a local insurance broker, builds a web page for his company, and because the refrain grab it off the internet has been playing in his head since middle school, he does not stop to think that the photograph of the family buying a car requires a license for use.  

That is the kind of infringement CASE is designed to address for the independent creator; and frankly, the commercial infringer should be grateful for the small-claim option as well.  As we saw in Brammer v. Violent Hues, a commercial user who really should have known better wound up costing himself a lot of money in federal court defending an indefensible use of one man’s photograph.  That was an archetypal example of an intentional user hastily making use of a photo he “found online,” knowing full-well that he had other options, including lower-cost stock photos or taking his own picture.

Just because the internet makes copyright infringement a bit too easy, this does not mean that not infringing copyright is especially difficult.  And CASE does not change anything about the parameters of copyright law, except that it may perhaps remind certain users that, no, everything online is not there for taking.  If intentional users simply pause to think about what they are doing and to what purpose, making legal and/or fair uses of works is not so mysterious as Adams et al would have you believe.  After all, if you are building a web page, writing a blog, promoting an event, etc. and not thinking about what you’re doing, you may have bigger problems than potential copyright infringement.

The “wild west” is over.  Good riddance.

Beyond copyright matters, I believe the folks at these organizations mean well (mostly), but they should pause and think about their personal moral codes in context to the world view they keep promoting—because it is actually destroying the world.  The romance of the “wild west” internet is over, and good riddance because the Wild West is nothing to aspire to as a society.  Consequently, it is worth asking why the CDT, EFF, et al are still so eager to promote the illusory value of never thinking about what we do online or to whom we do it.

These groups tend to oppose both platform and user liability for almost any kind of conduct; but whose interests are really served by a free-for-all market devoid of human agency, permission, or responsibility?  As we see in daily examples, it is the perfect environment for entrenching the economic and political power of the major web platforms while safeguarding the conduct of predatory actors and trolls, and—I would add—amplifying hateful rhetoric with tangible and dire consequences.  I suppose Stan Adams’s organization could change its name to Center for Tyranny-of-the-Mob and Technology, but that’s a bit of a mouthful and probably not good messaging.  Yet, bizarrely, it is kinda what they are selling.  

*Original publication stated that CASE passed out of the Senate and not just the SJC. Thanks to reader Dave Davis for catching the error.

Photo by conejota.

EFF Sides With Goliath (again) in Opposition to CASE Act

Now that the bill creating a small claim provision for independent authors of works is making progress in Congress, EFF has pivoted to its standard late-stage strategy whenever they try to kill legislation: the dissemination of scare-mongering bullshit. I do not mean that I disagree with them. There are not two sides to the story they are telling or considerations about which well-meaning parties can disagree. I mean the EFF is just plain lying when they try to scare people into believing that “Life-altering lawsuits could come to regular internet users” as a result of the CASE Act. No they bloody-well cannot.

The narrative being pushed by the EFF is that the small-claim provision will make litigation so easy for claimants, that more copyright owners will go after more regular folks. They want me to believe this means a higher probability that if my kids, for instance, share memes with photographs, I could be liable for damage awards that would indeed be damaging to my ordinary income.

But as explained in previous posts (because one can actually read the bill), CASE does not make enforcement so easy that rightsholders are suddenly going chase down every innocuous use of their works looking for quick payouts from ordinary users. For instance, rightsholders are limited in the number of claims they can file by both statute and their own resources. So, as a matter of common sense, if you could only file so many claims at a time, are you going to pick the handful of commercial users who should have licensed your work, or are you going to try to file against hundreds of users who might have shared some meme that was made out of your work?

Then, of course, there is that nagging little detail that the small claim tribunal is a VOLUNTARY alternative dispute resolution procedure. How can a process that is VOLUNTARY possibly result in what the EFF is alleging? Any notice served must prominently state that the tribunal is voluntary, and this will be repeated by the Copyright Claims Board when it sends its notice. I am always amazed that organizations like EFF, who claim to defend the internet, seem to think that this kind of information is not available to ordinary people via the internet. One might almost think the organization is behaving like…what do they call them?…gatekeepers?

The EFF presents itself as a crusader standing up for ordinary people against the powerful, whether that power is held by public or private institutions. Yet, their dishonest portrayal of the CASE Act is further evidence that their defense of the “little guy” does not seem to include all the defenseless victims of the digital age. The fact that their definition of the “little guy” does not embrace the working photographer who gets ripped off is no surprise, of course. After all, they do not even consider victims of harassment, revenge-porn, or trafficking to be worthy of so much as a conversation about altering Section 230’s immunity for web platforms that profit from these crimes.

By now, it is clear to most people that the internet creates new opportunities for bad actors just as it creates new opportunities for good ones. The EFF is not responsible for this unavoidable condition, but they do appear to have chosen sides, consistently determining that certain victims are worth sacrificing for what they have determined is the “greater good.” Who put them in charge of making that decision is a solid question, but it is hard to miss the fact that the “greater good” does frequently align with the interests of the major internet and high-tech corporations.

On the other hand, maybe the EFF is not the Silicon Valley shill that many have accused the organization of being. Maybe they sincerely believe what they are saying about the CASE Act and are not liars so much as they are merely incompetent. Either way, it’s scare-mongering bullshit. And don’t we have enough of that on the internet? Including more than a few of those precious memes the EFF is so worried about.

Masnick Calls CASE a Big Media Bill?

From the Techdirt Sycophants Department

In his post of May 28, Mike Masnick dutifully opened his hymnal and joined the chorus in a rendition of “How to Criticize the CASE Act,” lending his bel canto to the refrain that the new law would create a “copyright trolling court.”  As explained here and here, this is an inscrutable criticism because the Copyright Claims Board will actually be a lousy venue for copyright trolls—principally because it is a voluntary resolution option.  But if you don’t believe me about that, Mike’s further implication that CASE is a Big Media proposal and the product of “soft corruption,” is so transparently illogical that you may dismiss the allegation by applying a modicum of common sense.

Wanting readers to believe he speaks truth to power, Mike employs a little misdirection with the following innuendo about two of the bill’s lead sponsors:

“We should note, that the House bill is sponsored by Rep. Hakeem Jeffries, along with Jerry Nadler. You may recall that those two Congressman were recently seen hosting a giant $5k per ticket fundraiser at the Recording Industry’s biggest party of the year, the Grammys. And, right afterwards, they suddenly introduce a bill that will help enable more copyright trolling? Welcome to the world of soft corruption.”

Yes, that’s what happened.  The CASE Act was drafted on the back of a napkin at the Grammys party. (Stand by for Mike to accuse me of straw man because he did not literally say this.)

In Reality Land, I suppose we can ignore the fact that a small claim copyright proposal has been floating around Capitol Hill longer than Rep. Jeffries has been a Member of Congress—and, for that matter, longer than the bill’s other main sponsor Rep. Doug Collins of Georgia.  But I guess Collins wasn’t at the Grammys and so doesn’t fit Masnick’s conspiratorial narrative?  We might also ignore the fact that CASE has solid bi-partisan support, even from Silicon Valley Rep. Zoe Lofgren, and that the only effective (albeit unreasonable) opposition in the last two or so years has come from the Internet Association and the Computer and Communications Industry Association.  But what readers should not ignore is their own basic ability to reason, which ought to sound something like this …

BIG MEDIA COMPANIES DON’T GIVE A DAMN ABOUT COPYRIGHT SMALL CLAIMS.

Mike’s implication that Jeffries and Nadler partied with the RIAA and “suddenly” introduced a bill is just wrong as a matter of public record, but even if nobody wants to bother looking that up, you might then ask what possible interest major record labels or movie studios or any other Big Media companies have in creating a voluntary, small-claim, alternative-dispute provision for copyright infringement?  As Mike himself is very fond of reminding people, these are powerful corporate entities with high-octane attorneys on staff.  There is nothing in the CASE Act for these companies.

I know it’s hard to fathom, but the CASE Act is a rare example of bi-partisan legislation designed for regular people—middle-class creators who have almost no affordable path to remedy unlicensed uses of their works.  And thanks in no small part to tech-evangelists like Techdirt, online infringement is both rampant and misconceived as acceptable, even by commercial users who ought to know better. 

Mike should go back through all the articles and public statements he’s ever made on the theme that he “supports creators” but wants “balanced copyright” and feel obliged to eat every one of those words.  CASE is about balancing copyright.  It proposes to level the playing field for little guys who are getting clobbered by the policies and practices of the tech giants, which only makes Mike’s implication that it’s a Big Media bill all the more offensive.  I know attorneys who think CASE might not work, which is at least thoughtful criticism based on its actual mechanisms, but misrepresenting the Copyright Claims Board as a processing center for invalid damage awards is just mean-spirited considering the kind of people it is designed to help.

At this point, it would be grand if Mike and the legal pundits who write the songbooks from which he so often sings would just admit they don’t like copyright and will vigorously oppose any kind of enforcement no matter what.  That would at least be honest.  Still obnoxious, but not patently absurd.