A bad copyright bill moves forward in the U.S. - The CASE Act

[Resurgence]

A bad copyright bill moves forward in the U.S. with no serious understanding of its dangers.

The Senate Judiciary Committee voted on the Copyright Alternative in Small-Claims Enforcement Act, aka the CASE Act. This was without any hearings for experts to explain the huge flaws in the bill as it’s currently written. And flaws there are.

We’ve seen some version of the CASE Act pop up for years now, and the problems with the bill have never been addressed satisfactorily. This is still a bill that puts people in danger of huge, unappealable money judgments from a quasi-judicial system—not an actual court—for the kind of Internet behavior that most people engage in without thinking.

During the vote in the Senate Judiciary Committee, it was once again stressed that the CASE Act—which would turn the Copyright Office into a copyright traffic court—created a “voluntary” system.

“Voluntary” does not accurately describe the regime of the CASE Act. The CASE Act does allow people who receive notices from the Copyright Office to “opt-out” of the system. The average person is not really going to understand what is going on, other than that they’ve received what looks like a legal summons.

Furthermore, the CASE Act gives people just 60 days from receiving the notice to opt-out, so long as they do so in writing “in accordance with regulations established by the Register of Copyrights,” which in no way promises that opting out will be a simple process, understandable to everyone. But because the system is opt-out, and the goal of the system is presumably to move as many cases through it as possible, the Copyright Office has little incentive to make opting out fair to respondents and easy to do.

That leaves opting out as something most easily taken advantage of by companies and people who have lawyers who can advise them of the law and leaves the average Internet user at risk of having a huge judgment handed down by the Copyright Office. At first, those judgments can be up to $30,000, enough to bankrupt many people in the U.S., and that cap can grow even higher without any more action by Congress. And the “Copyright Claims Board” created by the CASE Act can issue those judgments to those who don’t show up. A system that can award default judgments like this is not “voluntary.”

We know how this will go because we’ve seen this kind of confusion and fear with the DMCA. People receive DMCA notices and, unaware of their rights or intimidated by the requirements of a counter-notice, let their content disappear even if it’s fair use. The CASE Act makes it extremely easy to collect against people using the Internet the way everyone does: sharing memes, photos, and video.

If the CASE Act was not opt-out, but instead required respondents to give affirmative consent, or “opt-in,” at least the Copyright Office would have greater incentive to design proceedings that safeguard the respondents’ interests and have clear standards that everyone can understand. With both sides choosing to litigate in the Copyright Office, it’s that much harder for copyright trolls to use the system to get huge awards in a place that is friendly to copyright holders.

We said this the last time the CASE Act was proposed and we’ll say it again: Creating a quasi-court focused exclusively on copyright with the power to pass judgment on parties in private disputes invites abuse. It encourages copyright trolling by inviting filing as many copyright claims as one can against whoever is least likely to opt-out—ordinary Internet users who can be coerced into paying thousands of dollars to escape the process, whether they infringed copyright or not.

Copyright law fundamentally impacts freedom of expression. People shouldn’t be funneled to a system that hands out huge damage awards with less care than a traffic ticket gets.



Sponsor of the CASE Act:

Senator John Kennedy (R-LA)


Co-Sponsors:

Sen. Blackburn, Marsha [R-TN]

Sen. Cornyn, John [R-TX]

Sen. Cramer, Kevin [R-ND]

Sen. Cruz, Ted [R-TX]

Sen. Tillis, Thom [R-NC]


Sen. Blumenthal, Richard [D-CT]

Sen. Coons, Christopher A. [D-DE]

Sen. Durbin, Richard J. [D-IL]

Sen. Feinstein, Dianne [D-CA]

Sen. Heinrich, Martin [D-NM]

Sen. Hirono, Mazie K. [D-HI]

Sen. Leahy, Patrick J. [D-VT]

Sen. Shaheen, Jeanne [D-NH]

Sen. Udall, Tom [D-NM]



https://www.congress.gov/bill/116th-cong...-bill/1273

https://www.eff.org/deeplinks/2019/07/ba...ts-dangers

[dueda]

A John Kennedy sponsors that? I suppose another JK may be screamming in his grave by now.
Anyway, welcome America, Inc., land of freedom - For the few select ones.

[Mike]

We've written a few times in the past about the serious problems with the CASE Act, a bill that will create a thriving industry of copyright trolling and shakedowns. On Thursday, the Senate Judiciary Committee passed the CASE Act out of Committee, meaning that it could go to the floor for a full vote. Stan Adams, from CDT, has written a detailed, and thoughtful critique, noting that even if there are good intentions behind the CASE Act, it has many, many problems. We're reposting it here, under CDT's CC-BY license.


Sometimes ideas based in good intentions are so poorly thought out that they would actually make things worse.
This seems to be especially prevalent in the copyright world of late (I'm looking at you, Articles 15 and 17 of the EU Copyright Directive), but the most recent example is the Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act). This bill intends to give photographers and small businesses a more streamlined way to enforce their rights with respect to online infringements by reducing the costs and formalities associated with bringing infringement claims in federal court. Pursuing infringement claims can be expensive and time-consuming, so this may sound like a good thing, especially for rightsholders with limited resources. It is not.

The CASE Act would establish a quasi-judicial body within the Copyright Office (part of the legislative branch) empowered to hear a limited set of claims, make "determinations" about whether those claims are valid, and assign "limited" damages. The bill structures the process so that it is "voluntary" and lowers the barriers to filing claims so that plaintiffs can more easily defend their rights. Without the "quotes", this description might sound like a reasonable approach, but that's because we haven't talked about the details. Let's start at the top.


The bill would establish a Copyright Claims Board (CCB) in the Copyright Office. This would not be a court and would be entirely separated from the court system. The only option to appeal any of the CCB's determinations, based on the CCB's legal interpretation, would be to ask the Register of Copyrights to review the decision. It would be theoretically possible to ask a federal court to review the determination, but only on the grounds that the CCB's determination was "issued as a result of fraud, corruption, misrepresentation, or other misconduct" or if the CCB exceeded its authority. So if you disagree with the CCB's legal interpretation, or even its competence to make a decision, you are out of luck. This raises red flags about potential due process and separation of powers problems under the Constitution.


The "small claims" part of the bill is also troubling, in that the CCB can award damages up to $30,000 per proceeding. This amount is only considered small in the context of copyright statutory damages, which range between $750-30,000 per work infringed, unless the infringement was willful, in which case, damages can be $150,000 per work. The $30K cap is a 2x-10x multiple of the maximum awards for small claims courts in 49 of 50 states. (Side note: what's going on, Tennessee?) So losing a single small-claims action before the CCB could be a financial disaster for many people, potentially for nothing more than uploading a few pictures to your blog.


You may be thinking, "I won't infringe copyright, I'll just make sure not to use any protected works." Here's why that will not be as easy as you might think. First, copyright is automatic. This means that when someone snaps a new photo, they immediately hold the rights to it. If you found a photo or other work that you wanted to use, you would need to get permission from the rightsholder. In some cases, determining who to ask is relatively easy. You may know the photographer or there may be clues indicating who likely owns the rights, such as watermarks or attribution information (photo courtesy of x). However, the only sure way to identify the rightsholder for any given work is to check with the Copyright Office to see who registered the work.


Even though the Supreme Court recently ruled that the registration process must be completed (either the Copyright Office granted or denied the application for registration) before filing infringement claims, registration is not required to bring an action under the CASE Act. This leaves everyone (other than the original author/photographer) with no guaranteed way to determine who holds the rights to unregistered works. Even if you identified someone as a potential rightsholder, it could be difficult or impossible to verify their claim of ownership without the official recognition by the Copyright Office. So even if you are acting in good faith and attempt to obtain permission before using a work, you may not be able to do so and there is no guarantee that you will have obtained permission from the correct party, leaving you exposed to claims via the CASE Act.


For example, you see an image (perhaps a vacation photo) on a friend's social media page and ask their permission to share it with your network. They agree and you share, not realizing that your friend copied that image from somewhere else, perhaps a travel company website. Your friend did not have the rights to that photo, and you made and distributed an unauthorized copy, exposing you to the possibility of an infringement claim from the actual photographer. Sharing that single photo could cost you $7500.


So, to recap, it may be impossible to obtain the correct permissions to use a work, and using a work with or without permission (relying on the fair use doctrine) may leave you exposed to claims up to $30,000, which will be determined by a panel of non-judges, whose decision you will have almost no way to appeal. Once their decision is final, you are also barred from relitigating your loss in federal court (unless you can prove fraud, etc). You may remember that this process is "voluntary." Let's talk about what that means in reality.


The process created in the CASE Act allows defendants to opt-out of the process. Specifically, defendants are given 60 days from when they are notified of the claim to tell the CCB that they do not wish to be subject to the procedure. (This is how the bill's drafters hope to skirt around all the constitutional issues—by getting people to voluntarily give up their due process rights and willingly accept the legal determinations of a non-judicial body.) So it's easy, right? Simply opt-out.


Yes, for many would-be defendants, especially the more legally sophisticated ones like large internet companies, opting out of each claim brought against them is not likely to be difficult, even if it is time and resource intensive. However, think about what you might do if you received an envelope claiming to be from a governmental body you have never heard of and asserting that you are potentially liable for infringing copyright. Many would simply ignore it or simply not understand the significance or the potential consequences. Others might perceive this notification as a form of phishing or a potential scam. 60 days elapse and you are now subject to the determinations of the CCB. The next letter you receive may be correspondence from a law firm (on behalf of the claimant) offering you a settlement deal that lets you buy your way out of the legal fight and the possibility of a $30,000 liability. Now what should you do: settle or try to defend yourself at the risk of a higher liability amount?


This litigation model is often called "trolling" and the CASE Act sets up a process that serves that model well. Sure, the process is voluntary, which means that only the least legally savvy people will be defendants. Yes, the statutory damages are reduced (compared to those available through federal courts), but they are still plenty high enough to push defendants toward settlement, especially given the limited options for appeal.


Despite its good intentions, the CASE Act is a legal disaster waiting to happen.



Permalink

Originally Published: Fri, 19 Jul 2019 09:25:44 PDT
source

[Resurgence]

Update:


The House of Representatives voted in favor of the CASE Act 410-6 (with 16 not voting).



Congress has had no hearings and no debates on this bill so far this session. That means that there has been no public consideration of the serious harm the bill could do to regular Internet users and their expression online.

It now moves to the Senate.


The CASE Act creates a new body in the Copyright Office which will receive copyright complaints, notify the person being sued, and then decide if money is owed and how much. This new Copyright Claims Board will be able to fine people up to $30,000 per proceeding. Worse, if you get one of these notices (maybe an email, maybe a letter—the law actually does not specify) and accidentally ignore it, you’re on the hook for the money with a very limited ability to appeal. $30,000 could bankrupt or otherwise ruin the lives of many Americans.

The CASE Act also has bad changes to copyright rules, would let sophisticated bad actors get away with trolling and infringement, and might even be unconstitutional. It fails to help the artists it’s supposed to serve and will put a lot of people at risk.




https://www.eff.org/deeplinks/2019/10/ho...right-bill