While so many people are pre-occupied with the many happenings of Brexit, Trump and many other things put out there by the mainstream media, the US Government could be about to pass into law a so-called anti-copyright bill that will change the way we express ourselves on the (for now) free and open internet forever.
The House of Representatives have recently voted in favor (on Tuesday 22nd October 2019) of the Copyright Alternative in Small-Claims Enforcement Act (CASE Act) by 410-6 (with 16 members not voting), moving forward a bill that Congress has had no hearings and no debates on 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.
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. While many artists and creators have every right to be concerned about copyright infringement on their materials being misused by other users without their permission, the new Copyright Claims Board named as part of the act will be able to fine people up to $30,000 (£23,061.30 as of 23rd October 2019) per proceeding. Worse still, 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 average 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.
The CASE Act would also set a limit of $30,000 in penalties per proceeding. In a world where almost 40% of Americans would struggle to cover an emergency expense of $400, the Copyright Claims Board would have enormous power to ruin the lives of ordinary Americans.
This problem has been glossed over in a number of ways. One is emphasis on the supposedly “small claims” nature of the bill, made most clearly by Representative Doug Collins of Georgia, who laughed off the need to discuss this bill by saying the $30,000 limit amounted to “truly small claims.” Another is an emphasis on the “voluntary” nature of the CASE Act.
The CASE Act is described as voluntary not because everyone involved has agreed to be there, but because everyone involved has not not agreed. It’s as complicated as it sounds.
The CASE Act would allow people who receive notice of a claim from this brand new Copyright Claims Board to get out of the proceedings by telling the Copyright Office they would like to opt out, with fair use being one example. However, the CASE Act doesn’t have any requirements about what “opting out” looks like other than that it has to be in accordance with regulations created by the Copyright Office itself.
That is no guarantee that opting out will be simple or easy. The Copyright Office’s regulations do not tend towards being easy reading for the average person. We see that every three years, when the Copyright Office issues its exemptions for Section 1201 of the DMCA.
Section 1201 bans circumventing of access controls on copyrighted works. It also empowers the Copyright Office to create exemptions to this prohibition. In certain circumstances—often ones rooted in free expression—you have the right to use copyrighted material without permission or paying the owner. And that “you” means everybody, not just people who make a living as documentary filmmakers, security researchers, and so on. However, the Copyright Office continues to make exemptions too complicated for regular people who don’t have lawyers to understand and use.
Given this history, it seems more likely than not that, if the CASE Act became law, the Copyright Office would continue in this vein. That is, its regulations would not be made easy to read and comply with. And the decisions of the claims board would focus less on issues of fair use and free expression, but more on technicalities and serving the desires of copyright holders.
In this environment, copyright trolls and worse would flourish. Copyright trolls make their money through copyright lawsuits, rather than through any legitimate creation. They are not fictional, nor are they a problem of the past. The CASE Act would make it easy for trolls to file a lot of claims. Not only could the trolls collect on those claims, but they could use the $30,000 limit to get their targets to agree to pay less, just to avoid the chance of a huge judgment being awarded by the board. And like in the case of the DMCA takedown system, most regular Internet users would find themselves in a scary, expensive situation if they tried to fight back.
DMCA takedown abuse has become a favorite tactic for scammers, and although the law makes it possible to go after fraudulent takedowns and counterclaims, it only happens in rare and extreme situations.
Because of how uneven the system the CASE Act would create is, and how complicated it stands to be, small copyright holders looking for a way to hold bad actors accountable are not going to find this system workable. Regular Internet users will be trapped, while those with money, and sophisticated infringers, will be able to navigate whatever opt-out system the Copyright Office creates.
So many takedown examples highlighted (https://www.eff.org/takedowns/_ as a result of the Digital Millennium Copyright Act’s (DMCA) takedown procedures (all under the name of 'Copyrighted Material') indicate that perhaps enforcing a bit too much anti-copyright law can silence legitimate forms of dissent and speech. One time, A critic used it to avoid criticism of his criticism (https://www.eff.org/takedowns/critic-uses-dmca-avoid-criticism). A group called “Straight Pride UK” used it when it looked bad in an interview it took part in (https://www.theguardian.com/technology/2013/aug/13/wordpress-straight-pride-uk) and a Nazi romance movie did not like people making fun of how bad it was (https://www.eff.org/deeplinks/2019/01/nazi-romance-movie-versus-memes-when-copyright-shuts-down-criticism). The CASE Act does not adequately consider the free speech implications of making copyright claims easy to bring. Another example earlier this year involved the Conservative Comedian Steven Crowder having videos of his 'Dr Trump' song praising the US President in the comedic video taken down unexpectedly by trolls because they decided to use the excuse of Copyright to censor him (https://society-reviews.com/2019/04/27/youtube-threatens-to-remove-steven-crowders-channel-for-copyright-violations/). ABC also used the excuse of Copyright to pressure YouTube to take down a Livestream Crowder did where he used comedic commentary to comment on the 2019 Oscars (https://www.louderwithcrowder.com/abc-disney-pulls-louder-with-crowders-oscars-live-stream-now-its-war/). Heck, even using comic books to criticize Congresswoman Alexandria Ocasio-Cortez will land you with a Copyright takedown notice too (https://www.louderwithcrowder.com/comic-creators-aoc-wonder-woman/)!
Even though the House has passed the CASE Act, there is some hope that you Americans can still stop it in the Senate. Tell your Senators to vote “no” on the CASE Act. Please do not hestitate to write to the White House and President Trump to veto this bill if it passes the Senate (better now than later) before it's too late and you'll see the freedoms granted by the founding fathers count for nothing in 2019 and beyond.
Sources include:
Electronic Frontier Foundation (eff.org)
Scholars express concern about the bill: chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2224&context=btlj