A lot of world-shaking events have occurred since 2018, when the CASE Act was introduced for the purpose of creating a small-claim copyright alternative, now known as the Copyright Claims Board (CCB). After a pandemic, an attempted coup d’ etat, and other jaw-dropping moments, it’s easy to forget all the ululating noise produced by the Electronic Frontier Foundation, Fight for the Future, Public Knowledge, Mike Masnick, the Niskanen Center, Sen. Wyden, and Computer & Communications Industry of America, et al. to warn the public about the perils of the CCB. The loudest talking point in that cacophony was the unfounded prediction that the small-claim tribunal would be an ideal forum for copyright trolls. For example…
“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 –
A “copyright troll” is an attorney who consistently files questionable or unmeritorious claims with the intent to extract settlements from alleged copyright infringers. In response to predictions that the CCB would be a perfect venue for trolling, I and others responded by highlighting the many safeguards in the CASE legislation that were written specifically to anticipate and prevent abuse of the tribunal. In fact, that EFF quote above was a double lie because safeguards against abusive or unmeritorious claims do not easily prevent trolling in federal court, which is why trolling happens in those venues, although not nearly so often as the anti-copyright hecklers like to claim.
CCB Safeguards Triggered for the First Time
As Jonathan Bailey describes in a recent post on his blog Plagiarism Today, the CCB has, for the first time, invoked its authority to bar an attorney from filing small claims for one year. To be clear, based on Bailey’s description, the attorney in question does not deserve the description “troll,” let alone the kind of predatory actor copyright hecklers refer to when they use that term.
Instead, this attorney triggered the safeguard provisions by filing several unmeritorious claims against Amazon, which was improperly named, and foreign resellers, which cannot be named in CCB claims. As Bailey notes, the effort is understandable because, “Many creators have complained that marketplaces like Amazon, Wish, Temu and so forth have become havens for infringement.”
My point here is not to comment upon or critique this one attorney’s intentions or errors, but to emphasize that the sanctions he activated at the CCB are the same safeguards written to prevent copyright trolls from even using the tribunal, let alone abusing it. As noted in this post, the CCB is a cost-prohibitive venue for the would-be troll due to the limited number of claims that may be filed in a single year, the potential fines for intentional abuse, and the possibility of being barred from the CCB for a year.
During the roughly two years between introduction and passage of the CASE Act, a typical response to the statutory safeguards was, “Well, we can’t trust the Copyright Office.” This familiar, dimwitted tactic is indistinguishable from those who say “We can’t trust the DOJ” in response to meritorious indictments against the former president. Meanwhile, the CCB, in demonstrating that it will enforce safeguards as the law requires belies all those scary headlines predicting that sharing memes on social media would result in a tidal wave of $30,000 fines.
The anti-CASE messaging has since evaporated into the digital ether, of course, but at moments like this, I think it’s fair to say that every time these same hecklers predict anything about copyright law, they should be ignored. I don’t mean that their views should be heavily scrutinized. I mean ignored. They lie about basic facts. They use fearmongering as a primary tactic. They claim to represent interests they do not represent. And they battle chimeras to stay relevant and raise funds. On that last point, expect to see the EFF look for an opportunity to litigate the constitutionality of the CCB—an effort that will likely fail but, as I say, will make good material to promote with a “Donate Now” button.
