The People the CASE Act Critics Don’t Want to Mention

“We are all authors now.”  This has long been a talking point of anti-copyright organizations.  I have credited it to Gigi Sohn, co-founder and former director of Public Knowledge because she kept tweeting it during House Judiciary Committee hearings on building copyright consensus in May 2013; but I don’t really know who said it first.  I only know that it’s a popular theme that may finally come around to bite the hands that tweet it.

Most of the time, my friends and I respond to this bumper-sticker phrase by criticizing the way in which it is false—namely that just because everyone posts stuff online, this does not make everyone authors of expressive works such that it demands a wholesale reversal of the way we think about copyright law.  In plain terms, just because 1.2 billion of us are all chattering, clicking, and sharing on Facebook and Twitter, this does not make the professional creator’s copyrights worth any less than they were before social platforms existed.

On the other hand, there is an extent to which that phrase has an element of truth to it.  Internet platforms and digital electronics have created opportunities for new kinds of authors, new forms of expression, and new avenues for entrepreneurism.  For several years, the copyright critics of the world have alluded generally to these new opportunities as a reason to prevent copyright enforcement online.  And they got away with this proposition by painting a false portrait of who copyright owners really are.

With well-funded resources to flood the blogosphere, the critics have bludgeoned the idea into peoples’ heads that the only copyright owners are either corporate entities or already-wealthy creators, who really should let small infringements go.  This false picture of the copyright-owner (and infringer) landscape has enabled entities like FFTF, EFF, and PK to use the kind of shorthand that is so effective on social media, sowing division between Creators and Users.  

But as these same digivangelists have preached in the past, many Users are Creators; and to the extent they’ve been right about that, a lot of those User/Creators are also—you got it—copyright owners.  What EFF, PK, FFTF et al are not telling these constituencies is that many of the “new” creators empowered by the internet may actually have a lot to gain from the copyright dispute tribunal that will be established by passage of the CASE Act. 

The popular YouTuber who has a clip appropriated by a commercial entity can avail himself of the Copyright Claims Board (CCB).  The budding cartoonist who is just building a following via Instagram—and who never thought about copyright until she saw one of her characters used without permission—can avail herself of the CCB.  The kitchen-table startup who makes unique products to sell on Etsy may find a remedy via the CCB. 

A key factor in this particular context is that many creators of these online works do not register copyrights, and often with good reason.  And while the CASE critics portray it as a negative that a rightsholder can initiate a claim via the CCB concurrent with filing a registration application, this is actually a significant advantage for the kind of entrepreneurial creators they claim to support. (See post here for more detailed explanation.) 

As the entrepreneurism fostered by the internet continues to grow, the “new” creators have started to discover what the “old” creators already knew—that if you make something cool, somebody will probably try to take it for themselves.  EFF, Public Knowledge, and Fight for the Future are probably hoping their creator constituents don’t notice this logical flaw in their campaign against the CASE Act.  But regardless of what they are thinking (or not thinking), the fact is many of you Users really are Creators and, therefore, copyright owners.  

And that brings me to a doozy of a point these critics REALLY don’t want to tell anyone.  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.  

Perhaps on this point most of all, the EFF, FFTF, PK would rather not talk about such pesky details because they might start to look as irrelevant to copyright policy as they are chronically dishonest about it.  Let’s face it.  For all the noise they make on subjects like wrongful DMCA takedown, what do they really do for any of those users other than capitalize on the problem as a way to maintain their own relevance and fundraising?  CASE Act provides an accessible, affordable remedy. And maybe that’s the thing the critics hate most of all.  

© 2019, David Newhoff. All rights reserved.

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