As the copyright small claims provision, the CASE Act, continues to acquire congressional sponsors—96 House Members and 14 Senators to date—the EFF is amping up the scare-tactics with blunt messages asking the average internet user if they could afford a $30,000 fine for copyright infringement. Clearly, the EFF expects this strategy to work because they think people are not smart enough to understand a fairly simple new law.
Facts matter. Not just the facts about how the CASE Act would function, which anyone is free to read rather than take my word, or the EFF’s word, about it. But more specifically, facts matter in a small claim tribunal the same way they matter in a case brought to an Article III court when considering a claim of copyright infringement. What the EFF is doing, though, is citing the maximum possible damage award that may be incurred by the most egregious possible infringer in a small claim case, and then using that data to scare folks into thinking that if one engages in “normal online activity,” they could be on the hook for thirty large.
First, second, and third, the Copyright Claims Board (CCB) is a VOLUNTARY dispute resolution venue. But EFF is concerned that people are not clever enough to opt out of a tribunal for which they would receive two notices that a rightsholder has filed a claim. Hoping to obfuscate the voluntary nature of the CCB, one of the EFF’s latest tweets reads, “The CASE Act would create a complex and obscure system that big players could get out of and small players could be left owing huge sums of money.”
I don’t know, but it seems more than a little insulting that the EFF thinks the average citizen cannot figure out a “complex” and “obscure” system that will begin something like this:
1) You receive a notice of a complaint in the mail from the CCB.
a) If you think the complaint might have merit—because yeah, you did sorta use that photo in an online ad without permission—you may wish to opt for resolution at the CCB. Check the box.
b) If you think the complaint does not have merit, or you want to insist upon adjudication in a federal court, you can opt out. Check the box.
If that system is really too complex for the ordinary user, shouldn’t we limit that user’s access to the internet before he hurts himself or others?
Meanwhile, the EFF is not clear who it means by “big players,” but people who have valid claims against big players may not bother with a small claim against “big” defendants. The reason the EFF mentions “big players” in this context is to balance their equation with bullshit of equal weight on the other side, alluding to the “small players left owing huge sums.” The purpose here is to make the reader’s mind run amok with visions of a copyright owner filing a claim against you because your kids are sharing memes or sound clips on TikTok or whatever. So, EFF thinks people do not have the basic common sense to follow this logic …
The number of claims that a copyright owner may bring to the CCB in a given year may be limited by the USCO; and for sure, the financial and time resources of the copyright owners are limited. Remember, these are middle-class creators with bills to pay and demands on their schedules just like you and I—the same so-called “small players” the EFF is supposedly defending. These are small-business creators, who do not have thousands of dollars and dozens of hours to burn on wasteful claims against non-infringing or non-harmful uses.
So, just like you and I would do, this class of creators will use their limited resources to take enforcement action against the infringements doing the greatest harm, where the facts are most clearly their side, and where the alleged infringer has the means to pay an appropriate damage award. This is not the “normal internet user” the EFF is referring to.
But EVEN IF some copyright owner did file a claim, for whatever reason, against an “ordinary user,” who uploaded some material to social media (for example), then I refer you to the earlier rule that facts matter. The CCB is not there to rubber-stamp claims for $30,000 payouts. It is there to consider all claims and defenses by both sides, and any damage awards—if awards are warranted—will be commensurate with the nature of the use and potential harm done.
That range will include decisions that the rightsholder has no claim or that the claim warrants a low-value award; but the CCB will discourage claimants from filing claims against the kind of “users” the EFF is trying to frighten. Trillions of uploads and shares occur online every day. No copyright owner or agency of the USCO has the resources, let alone desire, to take enforcement action against the kind of uses EFF is implying in its scary campaign.
But the EFF doesn’t think you can handle all those “complex” details. They prefer to paint a frightening narrative in which you might think you need a law degree and two years of practice to understand the provisions of the CASE Act. You don’t. And for users of works who should be considering copyright, this post explains why not infringing is also not very difficult.
© 2019, David Newhoff. All rights reserved.