With Friends Like Wyden … Creators Have a Problem
Anyone who is consistently engaged on copyright issues is used to hearing the rhetoric from the major critics, who say things like We support creators while they advocate policies that will further erode authorial rights. Whether these parties engage in this kind of chicanery in order to sacrifice artists at the altar of Big Tech, or they do it just because they are petty iconoclasts is subject to a case-by-case consideration. But if that same I care about you message is delivered by a senator to his constituents, it is acutely disappointing when he returns to the cloister of Washington D.C. and totally screws them over.
The fact that Senator Ron Wyden was going to do exactly this to Oregon’s creative community is prefaced in at least two town hall meetings captured on videos that I have seen. In one of these clips (which has not been made public), Portland-based photographer Tim Trautmann asks the senator about releasing his one-man hold on the CASE Act. After assuring the artists, musicians, photographers et al in attendance that he is “very sympathetic” to the need for a small-claim copyright option, Wyden then patronizes his constituents in a rather cloying display in the political art of hokum. First, by alluding to a mostly-false narrative in which he negotiated the amendments necessary to pass the Music Modernization Act (2018), Wyden then cites this unearned credential to imply that he will likewise help shepherd the CASE Act to passage with a few minor amendments that he personally believes are necessary.
From there, the senator rather predictably aped the tech-industry talking point that “teenagers and grandmothers posting memes could be harmed” by the small-claim copyright process, lapsing into cringy rhetoric, telling the “good people” in the room that he knows they do not want to hurt teenagers and grandmothers. In a similar video clip captured at Newberg by Trautmann, Wyden does the “grandmothers and teens” spiel along with other familiar, industry talking points, including the fallacious assertion that the small-claim tribunal would provide fresh opportunity for copyright trolls to ply their dark arts.
I believe the professional, political-operative’s term for Senator Wyden’s response to this group of Oregon voters is known as Absolute Bullshit, which is an official grade above Mostly Bullshit. The higher rating is earned in this case because, for example, the senator framed his allegedly unique perspectives about the CASE Act “in its present form,” as though the bill were still embryonic and not thoroughly developed by multiple parties over several years.
Presumably the good people in those rooms know that Senator Wyden can read the bill and at least acknowledge its many safeguards designed to alleviate the very concerns the senator pretends that he alone is now raising. Not the least of these would be the mandate that the small-claim tribunal is VOLUNTARY. (On the other hand, given the number of times the senator referred to his notes in the meeting captured in Trautmann’s video, I wonder if he did read the bill or understands how it works.)
So, after blowing all that smoke around various rooms in the state, Senator Wyden returned to D.C. and asked for changes to the CASE Act that would effectively obliterate its whole purpose for existing—a.k.a. poisoned pills. For instance, his proposal to reduce the damages caps by 95% of their current level is not only too extreme a revision to call a “compromise,” but it shows the senator’s underlying contempt for the bill, for copyright in general, and, by extension, for those constituents he basically blew off in the town hall meetings. A damages cap as low as $750 for a single claim (Wyden’s proposal) is so low that it barely covers the cost of filing the complaint and is, consequently, no deterrent to the kind of real-world infringements most rights holders have a problem addressing.
A Small-Claim Option is Good for All Parties
On a phone call with several Oregon creators, another Portland-based commercial photographer, Michael Shay, relayed an anecdote about Trautmann that is exemplary of the conflicts the CASE Act was written to resolve. After a local restaurant used one of Trautmann’s images without permission on its website for promotional purposes, the photographer requested a very reasonable few hundred dollars for the continued commercial use of the photo. “When the restaurant did not respond to letters and phone calls from his lawyer,” says Shay, “Trautmann expressed frustration about the situation to friends on social media, and that led to resolving the issue.”
I know. We can almost hear the chorus of tech-utopians exalting the use of social media pressure as a form of enlightened, DIY justice. But as Shay observed, social media “shaming” (i.e. a public fight) is not a very healthy solution for anybody involved—neither the copyright owner nor the infringing user—least of all in a relatively small community like Portland. On the contrary, civil laws exist in part to keep society from devolving to tribes of bullies; and very few copyright owners want to resort to bullying just so they can be fairly compensated for the use of their works. “I very reluctantly went to social media to talk about this issue at all,” Trautmann later told me. “I confided my feelings to one friend on Facebook, who then wrote a scathing review of the restaurant on Yelp!, and that resulted in settlement of the infringement matter.”
So, as indicated in my last post on this topic, Senator Wyden might want to look beyond his personal biases about copyright and the CASE Act and take a more holistic view of the community he was elected to serve. A copyright small-claim board is a civilized, voluntary (did I mention voluntary?) solution to a conflict between two members of a community—the copyright owner and the average commercial infringer like that restaurant—not the least consideration being that the restaurant would lose big in a federal case, if Trautmann had to file a lawsuit. Senator Wyden might want to ask the owner of Washington, D.C.’s Violent Hues productions what it ultimately cost him to post a photo on a website that he “found on the internet,” and whether a small-claim board would have been a much better venue.
It is a cold reality of politics that an elected official may be able to gauge the extent to which he can piss off some segment of the electorate. For instance, a Democrat can push environmentalists pretty far on the assumption that (at least in the present climate) that constituency is unlikely to swing to a Republican opponent. A similar calculus may be a factor for Senator Wyden sizing up much of Oregon’s creative community—an assumption that they are mostly “safe votes” in our current electoral dynamics. On the other hand, when a representative so blatantly misleads and blithely dismisses a community, as Wyden did in these town halls, he may discover that he is more vulnerable than he thinks. After all, with friends like him in Congress ….
Video link and still courtesy of Tim Trautmann.
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