Tag: small claim

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.

A Case for CASE in Brammer v. Violent Hues?

Following up on yesterday’s post about Brammer v. Violent Hues, it occurs to me that this narrative—at least as much as is publicly available—lends itself to a rationale for the proposed CASE Act, which would create a small-claim copyright tribunal at the U.S. Copyright Office. I won’t repeat all the particulars of the bill itself (see post here), but one of the challenges to the efficacy of CASE is that it is a voluntary alternative to federal court.

When copyright critics like EFF malign the CASE Act, they employ standard hyperbole, claiming it will create a cash-cow for every copyright troll in America. This claim obfuscates the actual mechanisms in the proposal, not the least of which is that a defendant has to voluntarily agree to the tribunal as a dispute resolution. This response is then countered by the prediction that if the small claim option is voluntary, it will never be used, thus making it a boondoggle of a proposal. Admittedly, the voluntary aspect does raise this very question, but after learning about the Brammer case, it seemed like a pretty good example as to why both parties might have opted for a small claim alternative had it existed.

A Relatively Simple Matter Complicated by Litigation

Based on the available evidence, Russell Brammer does not appear to be rabidly litigious; and Fernando Mico of Violent Hues does not appear to be ideologically determined to infringe. Mico made a mistake, perhaps an unwise mistake; but the fact that he removed Brammer’s image from his website upon receipt of a C&D letter indicates that he did not firmly believe he had a right to use the photograph. (This should have weighed against his fair use claim, but that’s another matter.)

At the same time, although Brammer is obviously willing and able to litigate, he cannot be expecting a very high damage award in this particular case. I have no idea whether he requested a settlement fee before proceeding to litigation, which would be normal in this kind of circumstance; but whether he took that step or skipped it, both he and Mico could, theoretically, avoid the up-front cost of litigation by mutually agreeing to move the venue to the proposed USCO tribunal. (Note that I make no judgment about Brammer’s motives or whether I think he should have sued. I’m only looking at the legal process based on his right to make a claim and Mico’s right to a defense.)

The Small Claim Tribunal Would Make Short Work of This Case

The fact that the Virginia Court mucked up the ruling so badly—straining against legal doctrine—emphasizes the value of the small claim option for plaintiffs and defendants in this kind of dispute. Not only is Brammer now forced either to drop his claim or appeal at greater legal cost, but Mico is likewise required to defend himself as the case moves up to the appellate court. And this appeal is only necessary because the district court made egregious errors of law—mistakes the USCO would be unlikely to make—on a relatively straightforward case.

One advantage of the small claim tribunal is that the proposed panel is only expert in copyright law, which is not at all true of federal judges. This can be beneficial to defendants as well as claimants, as there will naturally be cases that favor defendants just as plainly as Brammer favors the plaintiff.  So, yes, I would expect that the USCO tribunal to readily find that Violent Hues had infringed, but I also predict the appeals court will come to the same conclusion, only much later and for legal costs that will exceed the amount of an award the USCO tribunal would likely allow in this instance.

So, looking at the available facts, if Brammer had offered Mico the option of resolution via the small claim tribunal, while making clear that he was able to pursue federal litigation, it seems not unreasonable that Mico might voluntarily choose the small claim venue. Since the alternative would be to opt out and wind up exactly where this case is now, why not take a shot at a simpler and cheaper resolution?

I do not presume to truly know the motives or mindsets of other people. And I also admit to interpolating a bit from the data. But at the same time, this kind of infringement—one creator improperly using the work of another creator—is exemplary of “garden variety” copyright cases. And the whole purpose of the CASE Act is to provide one option—in addition to out-of-court settlements, and other resolutions—to more affordably and efficiently address these low-level conflicts.

For sure, the EFF is wrong to claim that the CASE Act will conjure all manner of copyright mischief, which is simply not possible within the provisions of the bill. At worst, the small claim tribunal won’t work; not enough people will use it, and it will be scrapped as a good intention. But even the known particulars of this Brammer case are so familiar to thousands of rights holders and defendants, that it suggests to me the CASE proposal is likely to be more widely applicable than many critics might assume.