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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.

The Pelosi “drunk” video is not only disturbing, it’s probably illegal.

There should be little doubt that the video clip doctored to make Speaker Pelosi look drunk should be seen as a sign of new hazards to come in the digitally-enhanced war on reality.  The video is not even very sophisticated compared to what is actually possible right now with technology like “deepfakes,” and we can expect to see far more clever uses of fabricated video that are subtle enough to seem plausible—perhaps even fool experts before long. 

Moreover, it should be recognized that most of us have bigger public profiles than we would have had twenty years ago.  Replace the Speaker with a university scholar or artist or corporate executive that some disgruntled party wants to harm, and the relative ease of reputation destruction should be a chilling thought for anyone with a social media account and photos or videos of themselves online. (Show of hands?)

Regardless of where one nets out on Facebook’s handling of the Pelosi “drunk” clip—leaving it online with caveats that it is a fake—it should probably be viewed as an outlier in terms of guidance for content removal specifically because it involves a high-profile elected official and is, therefore, news itself that perhaps should be viewed in that context.  But the video also implicates three violations of law that Facebook could choose to find instructive to its evolving moderation policy.

For consideration, recognize that the Pelosi “drunk” video is intrinsically copyright infringement, libel, and an infringement of the subject’s first amendment rights.  Any one of these should recommend removal as the default choice for the platform, but checking all three boxes should be a no-brainer.  It should also be noted that doctored video used to malign individuals is a byproduct of a culture skewed by the misconception that every video, photo, etc. online is available for common use; and in this regard, the copyright analysis helps identify what the Pelosi video truly is in a legal sense.

Why the Pelosi “Drunk” Video is Not Fair Use

Were the maker of this video to be sued by the copyright owner of the source material, his counsel would no doubt try to defend the fake as “transformative” commentary or parody (and the folks at EFF might even hold their noses and write a supporting brief), but any court that would allow this defense to be considered would have to blind itself to the fact that the sole purpose of the use was to fabricate newsworthy evidence of an event that never happened.

While free speech protects the right to mislead through the production of one’s own video or other media, I would argue that fair use does not support the right to mislead by using a copyrighted work to create a fake “factual” work.  The fair use doctrine, as codified in the Copyright Act of 1976, seeks to exempt unlicensed uses of protected works for purposes such as, but not limited to, commentary, education, news reporting, and parody.  

The fair use principle is court-made doctrine dating back to 1841 in the U.S., and we can bet the farm that no jurist anywhere has ever opined that a socially beneficial aim of this provision is the production of “false testimony.” (Judges are not fans of false testimony.)  And that is the only thing communicated by the doctored Pelosi video:  a false testimony that the Speaker was inebriated in the scene as depicted.  There is no discernible commentary or parody in the use.

In his seminal work on the much-debated “tranformativeness” doctrine, Judge Leval writes, “Can it be seriously disputed that history, biography, and journalism benefit from accurate quotation of source documents, in preference to a rewriting of the facts, always subject to the risk that the historian alters the ‘facts’ in rewriting them?”  This is in defense of making fair uses of a subject’s letters or diary entries, but it emphasizes the point that a foundational aim of fair use in a non-fiction context is to improve accuracy in reportage and editorial, not to obliterate it.

To make the distinction clear, a user may take a clip of a public figure speaking and slow down key sections for the purpose of emphasizing the statements he believes to be ridiculous, and that would be a form of commentary and, arguably, fair use.  But even this simple example is distinguishable from the Pelosi video, which contains no evidence of commentary but was presented as non-fiction work.

Given the inevitability of more fake video to come, some of which will rely on appropriations of existing material, the courts may need to recognize a standard of “false testimony” as an aim that is distinct from commentary, parody, etc.—a use that does not warrant the protection of fair use and should, therefore, be rejected without analysis under the four-factor test.

The Pelosi “Drunk” Video is Libel

When we view the Pelosi video as an example of  “false testimony,” it seems only reasonable to conclude that it is libelous.  And if it featured regular folk rather than an elected official, this would become readily apparent to the regular folk being smeared.  Politicians operate in a pejorative environment and are, therefore, immunized to an extent against many slings and arrows.  

But even though this video features the Speaker, this does not rescue the fact that it objectively makes a false statement posing as fact about an individual that could be damaging to reputation and career.  After all, if Elon Musk calling someone “pedo guy” on Twitter can potentially be libel, then a video falsely depicting someone engaging in disreputable or illegal conduct very likely meets that standard.

Section 230 of the CDA alleviates web platforms of any civil liability for knowingly continuing to host libelous material, but given the extent to which Facebook is lately twisting itself in knots seeking standards for content removal, perhaps adhering to the spirit of Section 230 would be helpful in that effort.  While the statute itself may be flawed, the clear intent of Congress was to encourage good-faith content moderation by site operators, and in that spirit, removing doctored material made with a clear intent to damage a reputation and mislead the public would seem to fit that particular bill.

The Pelosi “Drunk” Video Infringes First Amendment Rights

Calling the video a potentially “unfair use,” my friend and colleague Neil Turkewitz further notes that if a doctored video stands as “false testimony,” then maintaining its presence on a web platform like Facebook implicates the platform in the act of “compelled speech.”  Compelled speech is an infringement of an individual’s rights, and while Facebook is under no obligation to uphold the First Amendment, it can certainly elect not to participate in conduct that violates the principles of free expression in this manner.

Compelled speech and forced silence through intimidation are two overlooked downsides of internet culture when it comes to the general ebullience that these platforms have done wonders for the power of speech.  If you’ve seen the latest “deepfake” video samples showing static images of Einstein, Marylin Monroe, and the Mona Lisa transformed into talking motion pictures, it’s not hard to imagine how anyone may soon be the target of some personal vendetta.  And it’s a safe bet that any victims of such attacks will consider Facebook, or the hosting platform, responsible—maybe in Congress or maybe just in the market.

Guidance for Facebook et al?

We can assume that nobody will raise a copyright issue regarding the source material for the Pelosi clip and that Speaker Pelosi will not be suing anybody for libel or infringement of her speech rights, but I raise these topics because they could be relevant if the material used and the individual(s) maligned were only slightly different.  Meanwhile, as Facebook and other platforms try to develop new “community standards” that actually serve the community, it seems to me that existing law provides some rather handy guidelines. Perhaps as an exercise to hone its moderation practices, Facebook’s team might imagine that it is potentially liable for any of these transgressions and then decide how it would handle a similar video they knew to be fake.  As I say, ticking off three boxes—copyright infringement, libel, and infringing the individual’s speech right—is probably a good indication that the material should be taken down.

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.