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.

Black History Month in 2023

“Black history is American history.”

There is more than one way to read (or use) that phrase. On its face, it affirms that no honest or thorough narrative about the United States can possibly exclude the Black story. But from there, one might say, as Morgan Freeman suggested in a 2005 interview with Mike Wallace, that to distinguish or compartmentalize Black history as a subject can also perpetuate racial divisions and tensions. Thus, the statement is paradoxical, pitting the moral or intellectual obligation to engage with the uniqueness of the Black experience against the idealism of a color-blind society.

Of course, we are not a color-blind society in the ways we should be (i.e., the playing field is not level), but even if that ambition were achieved, it is a fallacy to think that color blindness as a matter of justice is synonymous with colorlessness in cultural or intellectual pursuits. As I have said many times, I defend copyright rights because, in principle, they empower the individual to express herself as she chooses and then empower the public to make of that expression what it will. And the result is a diversity of works.

Despite critics’ implications to the contrary, copyright rights fundamentally reject state authority to approve or deny the production of creative works—a critical distinction between American copyright law and its common law antecedents in England.[1] Sadly, however, neither copyright nor the First Amendment can entirely prevent state actors from engaging in censorship through other legal mechanisms, which brings us to a more cunning use of that phrase, as when Florida Gov. Ron DeSantis proclaimed to the TV press that “Black history is American history” in defense of his opposition to part of the curriculum in the African American AP Course.

As the putative leader of a culture war determined to make enemies of neighbors, DeSantis and his ilk exploit the opportunity to tell as many Americans who will listen that to confront (or even hear) certain aspects of the Black story is inherently divisive and tantamount to insisting that White Americans should feel a sense of self-loathing. One cannot deny that there are individuals (Black and White) willing to add fuel to that fire or that there is both good and bad scholarship on every topic, including Black history. But these nuanced distinctions are not what DeSantis’s “anti-woke” political tactic is about, and neither could it be.

It is not possible or appropriate for elected officials to concern themselves with every citizen’s social conduct or every teacher/student engagement or to attempt ad hoc review of every scrap of cultural and academic material. Nobody in DeSantis’s Back to Sleep party has the time, let alone the intelligence, to judge the qualities of every book, essay, or curriculum it hopes to mute because the subject matter threatens the colorless myth of American exceptionalism.

In 1965, when James Baldwin famously debated William F. Buckley, Jr. at Cambridge University, the topic presented was “The American Dream is at the expense of the American Negro.” Baldwin received a standing ovation and won the debate 540 votes to 160. But did Buckley swoon like so many of today’s featherweight conservatives and declare the question itself off limits—too offensive to American idealism to confront? Or when he referred in that debate to Baldwin’s essay The Fire Next Time, can we safely assume that Buckley had read the book rather than make a cowardly proposal to ban it?

Nearly sixty years since that historic joust and almost thirty years after the so-called information revolution, and the progress (to which Buckley alluded in his rebuttal) is a mixed report nationally and a catastrophe in some regions. Columnist Stephanie Hayes, writing for The Tampa Bay Times, remarks on the maturity and deftness of high school students in Pinellas County who last week petitioned their school board to reverse its ban of The Bluest Eye, the first novel written by Nobel Laureate Toni Morrison. Kudos to the students, but seriously?

It is hard not to indulge in gallows humor when a novel published in 1970 is swept into a pathetic, rhetorical war against “wokeness” in 2023. Is there a Woke section in the library or bookstore? Not unless the curator of either is being ironic. Is “woke” the latest reason to shun Baldwin’s 1963 novel Giovanni’s Room? Or what about John Irving’s In One Person in which the protagonist’s coming of age as a homosexual is intertwined with literary discovery and, therefore, confronts Giovanni’s Room through that character’s experience? Is the dialog between Baldwin in 1963 and Irving in 2012 a prime example of “wokeness,” or is it just American literature?

Or, finally, returning to the phrase with which I started this post, is the uniqueness of Baldwin’s experience, in contrast to Irving’s, a reason to celebrate Black History Month? I think so. Not because it is popular to think so, but because although it is true that Black history is American history, it is a subtle but important distinction to say that it is also Black American history. And that story is so complex and distinctive in the world that it is little wonder there are so many extraordinary Black American authors of extraordinary works.


[1] Copyright critics like to point to the fact that proto-copyright regimes in England were intertwined with first the royal prerogative and then then the government’s authority to license the production of certain works, but the U.S. did not retain the power of censorship in even its earliest copyright laws.

James Baldwin photo: Library of Congress, Prints & Photographs Division, Carl Van Vechten Collection, [reproduction number, e.g., LC-USZ62-54231]

Rick Allen Files Amended Complaint Against North Carolina

Copyright News

“This lawsuit is about Piracy, Greed, and Revenge” states Line 1 of the complaint filed yesterday in the North Carolina district court where documentary filmmaker Rick Allen is still seeking justice for the reckless, intentional, and frankly mean-spirited manner in which state officials infringed his copyright rights, deprived him of his lawful property interest in his motion picture and photographic work, and even passed a whole law directly targeting Allen’s intellectual property.

I have written extensively about Allen v. Cooper and the subject of state sovereign immunity (11th Amendment), which bars Allen and others (see posts here and here), from remedies to copyright infringement by states and state entities. I have often written about the subject of state immunity academically, but after a quick read of the amended complaint, which is linked below, I am reminded of the extraordinary human cost of infringing copyright rights. There will be more to write and say about this story, but for now, I urge anyone who is interested to read the complaint for themselves . . .

Rick Allen’s Second Amended Complaint