A Bad Copyright Bill Moves Forward 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.

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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.

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Katharine is the Manager of Policy and Activism at EFF, focusing on intellectual property, net neutrality, fair use, free speech online, and intermediary liability. Before joining EFF, Katharine spent many years as a writer and editor at the science fiction and science website io9, while also contributing occasionally to io9’s sister publications Deadspin, Jezebel, and Gizmodo. Katharine got a BA in history at Columbia University and a JD at USC Gould School of Law, doing work with the USC Intellectual Property and Technology Law Clinic. It was Katharine’s experience in media that lead to her going to law school with an eye to learning more about fair use and copyright law. She’s excited to be melding both her legal and writing background together at the EFF.