Tag: CASE Act

CASE Act Introduced. Critics Spin Tales.

Last week, bills to create a new, small-claim copyright process were introduced in both the House and Senate.  Generally referred to by the House name the CASE Act, the proposed changes to Title 17 will establish a Copyright Claims Board (CCB) at the U.S. Copyright Office with the purpose of offering rights holders a path to remedy infringements without the high cost of federal litigation.  Both claimants and respondents may avail themselves of the tribunal procedures with or without counsel; and claimants may also initiate proceedings for alleged infringement of works that are not yet registered, although registration must be obtained prior to the Copyright Claims Board considering a proceeding “active.”

Organizations like Public Knowledge and the Electronic Frontier Foundation reveal their true colors when they criticize CASE, not least because the topic itself is just barely within the purview of either organization’s mission.  It is true that a lot of garden-variety infringement occurs online and that this is a significant motivation for creating a small-claim option, but that does not make the proposal a “digital rights” issue per se.  There is no “right” to infringe copyright on the internet, so it would be refreshingly honest if EFF and PK would simply declare their open hostility to any form of copyright enforcement and stop paying lip-service to “finding better remedies” …

“We acknowledge the very real problems faced by many artists trying to enforce their copyrights online, and are hopeful that collaboration among all stakeholders can create a meaningful solution. However, the current CASE Act is not it.”  – Public Knowledge –

That is a multi-layered lie.  Despite many opportunities to weigh in over the many years CASE has been in development, Public Knowledge declined to do so.  It is not a good-faith negotiator representing stakeholders, and it is frankly hard to imagine who those stakeholders might be other than the staff of Public Knowledge itself.  After all, opposing policy on shaky grounds is usually good for a few fund-raising dollars, which is why my favorite detail in their little missive is this one:  

“The Act further entrenches an already-toxic culture of secrecy within major entertainment industries….”  

I would love to know in what alternate Marvel Universe does anyone think the multi-billion-dollar “entertainment industry” has thrown its “secret” muscle behind a copyright small-claim provision.  The maximum penalty that can be awarded by the CCB would not cover the legal fees for discovery in the kind of cases typically litigated by the entertainment industry.  This bill has nothing to do with that world.  Quite the opposite.  It was proposed so that copyright owners who are not Disney, Sony, and Netflix can restore some meaning to their rights.

If nothing else, I’m personally sick of pavlovian politics, whether it’s a racist dog whistle or an overt use of buzzwords invoked with the aim of misinforming the public about an issue.  Public Knowledge’s attempt to scare people by falsely alleging that this bill is the handiwork of Hollywood lobbyists lurking in the dark corridors of Congress is a classic example of why those who claim to defend the “information age” are so often the best examples of why we should not.  

Meanwhile, any party who genuinely wants a “meaningful solution” to rampant, online copyright infringement should actually applaud the CASE proposal as a mechanism that directly engages rights holders and alleged infringers in a process that will educate both parties about the exclusive rights and limitations of copyright. 

While PK and EFF will continue to try to paint CASE as a damage-award processing unit for claimants alone, nothing could be further from the truth, starting with the fact that although pursuing a claim via the CCB will be much easier than traditional litigation, it will still be a moderate pain in the ass.  There is enough work that needs to be done—either by the copyright owner or an attorney—that no independent rights holder is going to devote time or resources to pursue a nothing claim. 

To the contrary, the most consistent complaints come from photographers whose images are used for commercial purposes without license; and many of these are the archetypal cases worth pursuing in a small-claim venue.  As described in this post, when photographer Jenna Close testified before the House Judiciary Committee in support of CASE, she identified eighteen unlicensed, commercial uses of her works being made at that time.  Depending on the nature of the uses and the licensing fee for each, that could be a photographer’s rent or insurance for a year.    

At the same time, the CCB procedure will also be beneficial for respondents (defendants), including those who infringe works either naively or willfully.  As discussed in this post about Brammer v. Violent Hues, that case looked to me like an ideal circumstance in which both parties would have benefitted by opting for the CCB rather than federal litigation.*  The conclusion would have been the same, but the penalty the infringer would have paid would very likely have been far less than the grand total he now owes after pursuing an ill-advised fair use defense all the way to the appellate court. 

CASE Is NOT a Copyright Troll’s Playground

“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 –

That’s more or less the headline EFF et al have been using—alleging that CASE is a gift to copyright trolls.  Trolls are litigators who use false or otherwise improper claims to frighten accused infringers into settling threatened litigation.  They are a problem (albeit often exaggerated), and frankly the internet platforms have provided them with hunting grounds that nobody at EFF or PK is suggesting need to be shut down.  Meanwhile, the proposed Copyright Claims Board will be a terrible venue for copyright trolls.

For one thing, the CASE Act contains about page and half of anti-troll statutes—a safeguard that does not exist in any Article III court.  Parties bringing a claim for “harassing or other improper purpose, or without a reasonable basis in law or fact,” may be subject to a $5,000 penalty and/or barred from using the CCB for a year.  In addition to those barriers, the damages caps, along with the Register’s discretion to limit the number of cases a single party may bring in particular time-period make the small-claim tribunal a money-losing proposition for the would-be troll.  

Moreover, as proponents involved with the development of this bill have stated repeatedly, it is very hard to troll any party through a procedure that is VOLUNTARY.  The CCB is fundamentally an alternative dispute resolution option.  A respondent served with a claim may opt out within 60 days, and the CCB will dismiss the proceeding.  So again, not a very effective club for the troll to wield.    

So, I really don’t understand why organizations like EFF and PK believe this issue belongs in their wheelhouses in the first place.  Much like their dogged opposition to the Music Modernization Act—which had support from rights holders, tech platforms, and nearly all of Congress—it seems these organizations are just culturally opposed to the existence of copyright no matter what.   On the other hand, they make up so much crap about copyright, how would they really know?

*Admittedly, Violent Hues would have done better to just pay the fee originally demanded by Brammer.

Another Inscrutable Attack on Copyright by CCIA 

In a blog post last week for Project DiSCO (of the CCIA), Jonathan Band uses less-than-subtle sleight of hand to conflate the potential business implications of new photographic technology with photographers’ interests in copyright enforcement.  Citing a Washington Post article by Geoffrey Fowler, which proposes that ever-improving, AI-enhanced photographic tools built into smart phones are “democratizing” the opportunity for anyone to make “beautiful” photographs, Band notes that these technological advancements threaten the livelihoods of at least some segment of professional photographers.  

“Now, someone with a decent eye and a Pixel 3 can take photographs that are good enough for many events. The default aesthetics of Night Sight [a new technology] will satisfy many, if not most, potential customers,” Band writes.  And this may be true up to a point.  Off-the-shelf, push-button technical “perfection” in the hands of everyone can threaten the market value of many types of professional photographers.  

Of course that premise opens up a multi-faceted discussion about the myriad skills necessary to be a great portraitist, photojournalist, fine-art photographer, and so on.  And while that particular conversation may be very engaging, it has almost nothing to do with any particular photographer’s interest in her copyrights, and it has even less to do with the target of Band’s criticism—the copyright small-claim proposal called the CASE Act. 

“In response to this changing technological landscape, many of the organizations representing photographers have focused their energies on reforming copyright,” Band writes.  But this is a disingenuous segue because CASE is not remotely a response to changes in photographic capture technology.  The right or ability to protect an image is agnostic with regard to how the image is made.  Period.  Moreover, the premise of the CASE Act (i.e. enforcing a copyright claim for less than the cost of federal litigation) actually predates digital technology, although widespread infringement of works online does emphasize the urgent need for a small-claim remedy.

As described in this post about the House Judiciary hearings on CASE in September, one of the major complaints among independent creators is that commercial entities use their works for online marketing etc. without license.  If CASE passes, we can probably expect to see rights holders most often avail themselves of the small claim tribunal for these types of claims; and it is frankly impossible to fathom why anybody who cares about basic fairness in the market would have a problem with that.  Least of all the corporate behemoths represented by CCIA.  

Moreover, while it is true that advocacy of CASE has emphasized the plight of photographers—because theirs are the works most often infringed on the web—we should remind the CCIA and its readers that the bill proposes a small-claim option for all copyrightable works.  So, at best, Band’s focus on the latest advancements in cellphone photography have nothing to do with, say, musicians or graphic artists whose works are infringed in cases ideally suited to a small claim. 

Band’s post is, of course, a variation on a tired theme; and in that regard, I feel confident about telling the folks at CCIA (and the Internet Association also opposed to CASE) that authors of all stripes are sick to death of the following words of wisdom …

“The energy of associations representing photographers would be better directed toward helping photographers develop business models and skills that would allow them to thrive in the digital environment, rather than lobbying Congress to make changes to copyright law of questionable utility.”

Perhaps the energy of associations representing THE BIGGEST TECH CORPORATIONS ON EARTH would be better directed at playing Beer Pong than smugly telling professional creators time and again how little they they understand their own crafts and business interests.  Maybe CCIA can adapt to that new model.

 Photo source by meatbull

HJC Members Call Out Big Tech Shenanigans in CASE Act Hearing

For about an hour yesterday, I took a break from the drama unfolding in the Senate Judiciary Committee to tune into the House Judiciary Committee hearing on the CASE Act (H.R. 3945), which would create a Copyright Claims Board at the Copyright Office designed to adjudicate small copyright claims. It was almost hard to believe these two hearings were happening in the same country, let alone the same building. In particular, there was an undeniably palliative effect in watching Representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA) articulate a bipartisan commitment to protect America’s independent and middle-class authors of creative works.

Specifically, both Congressmen were very pointed in key responses to the two witnesses appearing on behalf of the tech-industry, whose opposition to CASE has, thus far, resulted in a handful of frankly disappointing amendments to the current discussion draft of the bill. Matthew Schruers* of Computer and Communications Industry Association (CCIA) and Jonathan Berroya, General Counsel at Internet Association (IA) were yesterday’s faces of Big Tech’s opposition to the bill, which relies principally on the assertion that the system will be vulnerable to abuse by copyright trolls. (Trolls are the ambulance chasers of IP law, who use false or flimsy claims to frighten alleged infringers into settling claims, although the scope of the “troll problem” tends to be exaggerated by a range of parties with an interest in criticizing copyright.)

Let’s not equivocate. The alleged concerns about CASE creating a new forum for copyright trolls is demonstrably absurd and is disingenuously asserted by internet giants , who truly have no skin in this particular game. The Copyright Claims Board, as proposed, entails far too many safeguards on its use to be an attractive venue for a would-be troll.

For instance, there is a provision which denies access to the CCB to any party who consistently brings false or flimsy claims—a limitation that does not exist in an Article III court system. Further, as mentioned in past posts, because the CCB is expert in, and focused on, copyright law only, it will be a much harder forum in which to present a weak or false claim than a federal court. And finally, a respondent (alleged infringer) can opt out of the CCB upon written notice of a claim.

But unsatisfied with all those safeguards, the lobbying efforts of IA and CCIA have also resulted in a provision to limit the number of valid claims that a rights holder may bring to the CCB to ten per year. As evidenced by witness Jenna Close, representing photographers and visual artists, this “anti-troll” concession is arbitrary in light of the fact that she noted 18 infringing uses of her work by commercial entities in yesterday’s testimony. That the Internet Association, representing Facebook, Google, eBay, and other billion-dollar corporations, should even have a say in limiting Ms. Close’s remedy options to roughly half the infringements of her work is an aberration of reason and justice. But as she said to the committee, “Ten is better than nothing.”

Despite the Politics, Key Members Are Clear

Unfortunately, the political reality is that the CASE Act is not going to move out of committee unless these industry organizations either endorse the bill or amend their position to one of neutrality. That they have anything to say at all is frankly galling given that the tech and internet companies are shielded in several ways (not the least being their size) from being targets of small infringement claims, but as usual, these industry representatives claim to be defending the interests of their users (meaning all of us), who may be unfairly targeted by presumptive abusers of the CCB. It was in response to this general posture that Representatives Collins and Jeffries homed in. Anyone who quarrels with Silicon Valley on policy is very familiar with the list of hypothetical disasters that will befall the internet (and all mankind) if we enforce copyrights, or any rights, in the digital age. Doug Collins was pellucid on this matter …

“From the side that says it’s maybe not needed, I hear a lot of hypotheticals. In this room today, there is not a hypothetical. There’s Miss Close.”

Then, alluding to the creators in the gallery who appeared in support of CASE …

“These are not hypotheticals. These are real people who have real issues with real infringement on their work. One of the things that’s great in DC is that we’ll always find the hypothetical that says you can’t. I’m about finding hypotheticals that say those who create mean something and those who create have value and have infinite worth. If we ever get to the time when the hypothetical wins out over the creator, then the creator is dead. We’re looking for solutions. If a hypothetical gets us to a solution, wonderful hypothetical. If a hypothetical is just a roadblock in the way, it’s time for a bulldozer.”

Even more pointedly, Hakeem Jeffries, lead sponsor of the bill and the next Member to question the witnesses, asked Matt Schruers whether the concessions already made in CASE were not sufficient to allay his constituents’ concerns about hypothetical trolling and abuse. Specifically, Jeffries refers to a concession (one I believe cedes too much) that allows a party to opt out of CCB tribunals with a single, blanket statement—meaning no corporation with even mediocre legal counsel will ever be party to one of these adjudications.

To this, Schruers conceded that corporate entities would be well shielded but then tried to raise the specter of the hypothetical internet user being defenseless because he would not know to avail himself of this opt out provision (i.e. the bill isn’t toothless enough). In response to the premise that the CCIA represents users at all, Jeffries stated …

“I get all of this due process language, and it sounds flowery, and it’s beautiful. But 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. So, it becomes a little difficult I think for many of us to take some of these concerns as seriously as they’re being projected.”

Amen. Copyright advocates have seen this tactic employed repeatedly: the internet giants hide behind the interests of users when it suits their policy agenda, but their own legal structures and terms of service make clear that users have almost no legal remedies if their complaint is with a platform itself. Whether the subject is copyright or any other policy issue, Rep. Jeffries deserves kudos for hitting this nail squarely on the head. It may be true that we all use the internet, but that will never mean that our interests are identical to those of Google, Facebook, Twitter, et al.

The CASE Act addresses a longstanding problem for independent creators who deserve to enforce their rights in relatively low-level (but meaningful) infringement claims that are simply too small to justify the cost of federal litigation. My takeaway from yesterday’s hearing was that Committee members largely understand the issue, want to support this large population of independent creators, and hope to pass the bill before November. Even Representative Zoe Lofgren (D-CA), who tends to be consistently critical of copyright, endorsed the need for CASE.  Near the end of the hearing, Chairman Issa asked Schruers and Berroya, “What will get you to yes?” I understand that’s a political reality, but it shouldn’t be. The IA and the CCIA do not honestly represent anyone—either creators or internet users—who have any stake in this bill. They’re just inconveniently too powerful to ignore.

Related…

Some may note that organizations like EFF, who claim to speak for users, were not present for the hearing; but on that subject, readers who are unsure about the extent to which these organizations tend to speak for industry will want to watch Frank v. Gaos, recently granted cert at the Supreme Court.  It relates directly to the issue of internet industry (and other industry) accountability, and there will be more to say about this case in future posts.

SCOTUS will hear arguments on Halloween Day, but in sum, the suit challenges the regime whereby a corporate entity (or industry) loses a legal battle to the extent that they pay a settlement in a class action, but then the settlement money winds up funding organizations that advocate policy favorable to the corporation or industry at issue. With regard to internet policy, these cy pres awards have funded the Electronic Frontier Foundation, think tanks, and academic works that just happen to advocate policy favorable to the internet industry. More to follow very soon.  (Post added on 10/30.)

*This is the same Matthew Schruers who pitched the brilliant concept that it’s okay to steal copyrighted content because the money saved will be spent elsewhere in the economy.