The CASE Act won’t actually help artists and small creators
Kerry Maeve Sheehan, Authors Alliance: “While this opt-out procedure is supposed to provide some protection for the accused, there’s a strong likelihood that authors, educators, and small creators without sophisticated legal knowledge or representation may not fully understand the implications and may ignore the notice – ending up on the hook for substantial damages awards without a meaningful opportunity to appeal.”
The CASE Act will hurt consumers and endanger free speech
Kate Ruane, ACLU: “What makes the CCB’s nearly unreviewable authority even more troubling is that the board will inevitably be faced with tough questions about what is infringement, what is fair use, and what is protected speech. These questions should not be left to the sole discretion of one government office, especially when those affected could include every Internet user who has ever shared an article or a photo without knowing whether they had proper permission or posted a video of themselves singing along to the latest pop song. With no court to correct the board’s mistakes, the First Amendment will suffer.”
Abby Rives, Engine: “In practice, it seems the CASE Act will do little more than create an unaccountable quasi-judicial tribunal—whose sole purpose is to make it easier for copyright owners to file claims—and that enters default judgment or adjudicates claims against smaller players who fail to appreciate the significance of foregoing the protections of federal court. Under these conditions, it would be easy for bad actors to file or threaten claims, even weak claims, and coerce unwary respondents to settle for less than the statutory damages amount.”
Automattic, GitHub, Patreon, Pinterest, and Reddit: “Users of our services regularly adapt and transform copyrighted material for purposes of, e.g., commenting, criticizing, educating, and reporting. Those are activities that copyright law seeks to encourage and that the First Amendment protects. Because the CASE Act limits the rights of accused infringers, it will unduly constrict those fair uses and stifle the voices of communities we serve.”
Josh Lamel and Sasha Moss, ReCreate Coalition: “Alleged infringers can be any mom and pop business or nonprofit as well as regular users of platforms like Instagram or Facebook. If you post a photo or song that you do not own — whether or not you know it violates copyright to do so — you will be subject to the small claims procedure. Even if you do all of your research by checking copyright registrations before using a work, you can be subject to a suit because registration is not required. No matter how much background work you do, how hard you try to not infringe a work, if you use it improperly you will be subject to damages that would be over half the annual take home pay for most Americans, without accounting for attorney fees and costs.”
Katharine Trendacosta, Electronic Frontier Foundation: “The CASE Act makes it extremely easy to collect against people using the Internet the way everyone does: sharing memes, photos, and video…People shouldn’t be funneled to a system that hands out huge damage awards with less care than a traffic ticket gets.”
Mozilla: “The bill also authorizes the Register of Copyrights to unilaterally establish a forum for claims of up to $5,000 to be decided by a singular Copyright Claims Officer, without any pre-established explicit due process protections for users. These amounts may seem negligible in the context of a copyright suit, where damages can reach up to $150,000, but nearly 40 percent of Americans cannot cover a $400 emergency today.”
The CASE Act has significant constitutional problems
Josh Lamel and Sasha Moss, ReCreate Coalition: “If passed, the CASE Act will establish a judicial function within the legislative branch, the first of its kind and a terrible precedent. Our founders established three separate branches with three separate functions to allow for each branch to act as a check on the other…Aside from the constitutional concerns, this legislation provides for no judicial review. If the small claims panel rules in favor of the plaintiff, the defendant will have no legal recourse unlike other judicial proceedings.”
Stan Adams, Center for Democracy & Technology: “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…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.”
Meredith Rose, Public Knowledge: “All of which underscores the importance of housing any small claims system within the federal judiciary. Unlike the Copyright Office — a small office for which these kinds of complex, individual damages calculations are uncharted territory — the judiciary has meaningful experience adjudicating individual claims for damages.”
The CASE Act will help copyright trolls target artists and consumers
Cathy Gellis, intellectual property counsel: “The CASE Act appears to reflect an idealized view that the only people who sue other people for copyright infringement are those who have valid claims. But that is not the world we live in. Trolls abound, parasites eager to use the threat of litigation as a club to extract money from innocent victims. And the CASE Act, if passed, would give them a bigger weapon.”
Michael Petricone, Consumer Technology Association: “Even under the current system, copyright trolling is near-epidemic. Between 2014 and 2016, copyright troll lawsuits constituted nearly 50% of all copyright cases on the federal dockets. Researchers have estimated that over 170,000 Internet users have been subjected to frivolous copyright threats since 2010. Troll attorneys leverage the threat of statutory damages—up to $30,000 in S. 1273–to intimidate individuals, artists and small businesses to ‘settle’ more often than they actually file suit. Unfortunately, the bill’s limitation on numbers of suits by a single ‘claimant’ (not by a lawyer or law firm) and the ease in which these businesses can find willing plaintiffs will barely be a speed bump for aggressive and unscrupulous troll lawyers.”
Mike Masnick, Techdirt: “[T]he entire framing of the bill is based on the idea that those who sue for copyright infringement only do so when they have valid claims. Indeed, anyone paying even the slightest bit of attention to copyright lawsuits over the last decade would know this is laughable. The entire bill is disconnected from reality and would only serve to make copyright trolling become an even bigger problem, and would enable an even more significant level of the copyright shakedown game, in which dubious claims of infringement are tossed around in hopes of extracting settlement fees.”
Daniel Takash, Niskanen Center: “It is unreasonable to expect someone who unknowingly posts a copyrighted photo on their blog, for example, to be familiar with the nuances of fair use. What seems like a user-friendly remedy process will turn into a lion’s den for infringers going up against seasoned rightsholders and their lawyers. It’s also important to keep in mind that it is almost comically easy to infringe on copyright. Post someone else’s picture – or even forward an email without permission – and you are automatically a copyright infringer.”
The CASE Act establishes excessive penalties for consumers
Ernesto Falcon, Electronic Frontier Foundation: “Today, someone who is going to sue a person for copyright infringement has to register their work with the Copyright Office before the infringement began, or within three months of first publication, in order to be entitled to statutory damages…But if Congress passes this bill, the timely registration requirement will no longer be a requirement for no-proof statutory damages of up to $7,500 per work. In other words, nearly every photo, video, or bit of text on the Internet can suddenly carry a $7,500 price tag if uploaded, downloaded, or shared even if the actual harm from that copying is nil.”