Congress Looks To Rush Through Unconstitutional Pro-Copyright Trolls Bill, Despite Promising To Explore Alternatives
from the because-of-course dept
We've written a bunch about the CASE Act, which Congress (misleadingly) has referred to as a sort of "small claims court" for copyright claims. Supporters say that this is needed because actually going to federal court, where copyright claims are normally heard, is too expensive for smaller copyright holders. There are multiple problems with this, starting with the fact that an entire industry of copyright trolling firms has been built up around "helping" smaller copyright holders demand payment from anyone who uses their works, and the courts are already flooded with such cases (many of which are already dubious). Second, the CASE Act is not actually about "small claims" nor is it a "court." The process it can create -- a tribunal within the Copyright Office -- can order accused infringers to pay up to $30,000, which is not very small at all. Yet, Congress is so out of touch with the average American citizen that one member, Rep. Doug Collins, literally laughed about how $30,000 was such a "small claim."
The CASE Act has received almost no debate in Congress this session. @RepDougCollins shows one reason why: they think $30,000 is "truly" small claims. Tell Congress how being asked to come up with this kind of money would affect you. https://t.co/5C6FX3reG7 pic.twitter.com/f0qN0tOoZE
— EFF (@EFF) September 21, 2019
Unfortunately, not everyone is like Doug Collins with multiple real estate holdings and a teacher's pension, and can afford a $30,000 fine for merely posting an image you like on social media.
Part of the insanity of the CASE Act is Congress's complete unwillingness to recognize that in making copyright trolling easier, we are guaranteed to see a significant increase in copyright trolling shakedowns. They act as if that won't happen -- which is quite incredible.
But, even worse, is the process behind all of this. As well-respected copyright expert Pam Samuelson explained, the CASE Act is likely unconstitutional, because it's fairly well established that the executive branch (Article 1) cannot route around the judicial branch (Article III) by setting up its own tribunals to handle disputes involving "private rights." While the courts have upheld other tribunals, including the important PTAB patent review tribunal, that's an entirely different matter. The PTAB is analyzing whether or not a patent was properly granted by the Patent Office, not whether or not there is infringement.
The tribunal established by the CASE Act, on the other hand, would be adjudicating questions of infringement, which is clearly an Article III issue.
Incredibly, with so many problems with the bill and so many concerns about the constitutionality of it, you'd think that Congress would be interested in exploring a more careful approach or in investigating the potential consequences of the bill. You'd be wrong:
While there was a hearing held at the end of the 115th Congress on September 27, 2018, there was no hearing in the 116th Congress. Most of the House Judiciary Committee has changed due to retirements and a new democratic majority in the House. Additionally, none of the numerous public interest groups or constitutional scholars that have issues with the legislation were invited to testify. Even so, with almost no notice, the bill was marked up late in the evening in the House Judiciary Committee on September 10, 2019, when Members were tired or simply leaving. Furthermore, the CASE Act was added to the markup after a marathon session on several highly controversial firearms bills. Fortunately, multiple Members raised concerns and were promised by the sponsors that amendments would be considered before bringing the legislation to the floor. Unfortunately, there has been no opportunity to amend the bill. The manager's amendment is nearly identical to the original bill.
Yup. The original bill, which faced no hearings in the current Congress, and which the leadership has blocked any ability to fix or amend, is up for a vote tomorrow. It's time to call your Congressional Reps right now and tell them what you think of the CASE Act and the sorts of copyright trolling it will enable. As EFF explains:
The new tribunals will receive complaints from rightsholders (anyone that has taken a photo, video, or written something) and will issue a “notice” to the party being sued.
We don’t actually know what this notice will look like. It could be an email, a text message, a phone call with voice mail, or a letter in the mail. Once the notice goes out, the targeted user has to respond within a tight deadline. Fail to respond in time means you’ll automatically lose, and are on the hook for $30,000. That’s why EFF is concerned that this law will easily be abused by copyright trolls. The trolls will cast a wide net, in hopes of catching Internet users unaware. Corporations with lawyers will be able to avoid all this, because they’ll have paid employees in charge of opting out of the CASE Act. But regular Americans with kids, jobs, and other real-life obligations could easily miss those notices, and lose out.
The CASE Act creates a massive, incredibly detrimental, change to copyright law that will enable massive amounts of trolling, and huge fines for ordinary people doing ordinary things online, like sharing photos on social media. That Congress is rushing this through, ignoring all the concerns, is a travesty and should not be allowed.
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Filed Under: $30000, case act, copyright, copyright trolling, doug colling, sharing, small claims, social media
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I wonder how our resident copyright maximalists feel about this bill and how it would most certainly lead to corporations using copyright law to censor third party speech. 🤔
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They love it - Pro Copyright is Pro Corporation. This will give tremendous power to corporations and screw over individuals.
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Re: Re:
That's a feature, not a bug.
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uh, actually I feel like everyone on Twitter already knows that Google is up to their usual lying and scare tactics again because they hate copyright.
I wonder how much Mike Masnick is paid to write this silly drivel.
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Re: Re: uh actually I’m a preserve
“I wonder how much Mike Masnick is paid to write this silly drivel.”
More than you are bro. Hence why you’re so jelly we should call you Smuckers.
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Plaintiff argues that “Google is up to their usual lying and scare tactics again because they hate copyright”. But Plaintiff offers no facts in their Complaint to support this proposition. The argument is summarily dismissed.
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Huh? What does Google have to do with this?
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[Asserts facts not in evidence]
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"I wonder how our resident copyright maximalists feel..."
Never even enters my mind.
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If I had to guess, a white mess on the wall.
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Boomers are shilling this bill all over the place
https://mobile.twitter.com/stretchphoto/status/1186034487370682369
There's a shitton of tweets like this. We're doomed.
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The CASE Act is likely unconstitutional so we are not doomed and if it passess the house it still needs to go to the Senate.
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"There's a shitton of tweets like this. We're doomed."
How many are from russia?
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Re: Re:
When in doubt, blame Russia. Works every time. Or least it used to.
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Re: 60% of the time, it works every time.
When in doubt deflect blame away from your paymasters.
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Re: Re: Re:
Sorry to have asked a relevant question, perhaps you would be more satisfied with some meaningless drivel because that apparently is all you understand.
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Re: Re: Re: Re:
You mean that wasn’t meaningless drivel?
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If someone's trying to stab you make them WORK for it
There's a shitton of tweets like this. We're doomed.
Doom is only assured if nothing is done to counter them. Email in, call if you can, tweet or otherwise post on other social media opposition to this disaster by pointing out what a massive boon it would be to the parasites and how easily anyone could be on the hook for thousands/tens of thousand for actions people do on a daily basis without thinking twice...
Fight back and you might lose.
Don't fight and you will lose.
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Re: If someone's trying to stab you make them WORK for it
Well, we're probably doomed regardless of this bill passage.
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Re: Re: If someone's trying to stab you make them WORK for it
We are not doomed.
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Familiar with the term 'self-fulfilling prophecy' by any chance?
When you've already decided that you've lost then yes, you are, as you've preemptively handed victory to those that you might have been able to fight back against such that they can do whatever they want.
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Re: Familiar with the term 'self-fulfilling prophecy' by any cha
Have we passed the tipping point? May not know for sure until it is way too late but no worries.
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Re: If someone's trying to stab you make them WORK for it
I don't want to just fight. I want to win. Fighting is pointless if we don't win.
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You aren’t ready to fight if you’re not ready to lose. Step up when you are. Until then, go be defeatist somewhere else.
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We can't afford to lose to Corporate tyranny. We fight and win or nothing else.
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Re: Re: If someone's trying to stab you make them WORK for it
Not in the slightest. Not fighting ensures that you won't win, and it allows the other side to claim that you're perfectly fine with what they are doing/plan on doing because look, no one objected, which makes it all the harder to challenge them if they do win the first round.
Victory will almost never be assured from the outset, so if you only fight when you're sure you'll win you'll instead end up losing constantly, having handed victory to your opponent without them having to do more than the most basic of work.
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Re: If someone's trying to stab you make them WORK for it
Remember, the pro-copyright brigade believe that copyright holder = creative. They also believe that copyright is a fountain flowing deep and wide (copyright ownership guarantees $$$) and that due process is an impediment to justice. When you argue with them, remember these points.
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It's so sad it's funny, or the other way around, because the silver-haired generations are usually the biggest, fattest targets for copyright trolling. Boomers think "Well I hate the Internet and millennials, plus I'm computer illiterate, so fuck the kids!" Not that the lack of possessing a computer has ever stopped copyright trolling.
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The potential target being dead hasn’t stopped it, either.
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Or being a printer, a scanner, or a fax machine ....
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Don't sell the oldsters up a river quite yet, many of them do not fit the stereotype foisted upon society in much the same manner as the ridiculous assault upon millennials.
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Unfortunately, not nearly enough of the non-stereotyped are in a position to influence legal direction. Too many Liam O'Gradys, not enough Harry Pregersons.
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Yes, sad but true.
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Congress is full of dodgy lawyers, so naturally they will create opportunities to make a fortune.
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And over here in Europe we saw Article 13/17 being rammed through despite all the protests. This CASE story seems to go the same way. I wonder if it will become a cross-border thing, in which we here in the EU use a tiny thumbnail from a search engine just to illustrate an article a bit, only to find out that the thumbnail is from a photographer in the US who will now drag us into the small claims court?
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Is it really unconstitutional?
The article says a copyright expert told them that this would be unconstitutional because "the executive branch can not route around the judicial branch", but isn't that exactly what the immigration courts do? They are completely under the executive branch, including the judges. So far, that has not been deemed unconstitutional.
https://en.wikipedia.org/wiki/Executive_Office_for_Immigration_Review
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Re: Is it really unconstitutional?
Lawful Masses did a really good read through of the advantages and disadvantages of the CASE proposal a year ago. I wonder what changes have been made since then. https://www.youtube.com/watch?v=nbxvzlaG7mU
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Re: Re: Is it really unconstitutional?
A) effectively none
B) as much as I love Leonard french and his analysis, he dropped the ball when he addressed the EFF's complaint, confusing the EFF pointing out that the law does not require proof of infringement (harm, as the EFF called it) to be established, an issue when faced with the type of trolls known have had issues with proper service, with the issues of proving damages (which copyright does not require).
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Re: Re: Is it really unconstitutional?
As a regular Lawful Masses viewer (I even support Leonard on Patreon), I still strongly disagree with the CASE Act, regardless of whether or not there were changes made since then. (Based on the article, I'm inclined to say a little or nothing has changed, but that's not my point.) Here are some of my problems with the law as written:
The positive elements outlined by Lawful Masses are outweighed by the negatives. So, no, I'm not on board with the CASE Act.
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Re: Re: Re: Is it really unconstitutional? - Good points
I mention Lawful Masses because it is one of the few places I've found that actually discusses the matter in depth who also includes references. Even when I disagree with his conclusions, I find them enlightening.
You are correct in that California accounts for most of the Copyright Cases brought in the year with New York coming in a close second. To the best of my knowledge, California Small Claims also doesn't let you get Attorney's fees. (Site on where copyright cases are filed: https://trac.syr.edu/tracreports/civil/483/ ) It seems there WILL be a limit on how many of these cases one person can bring in a year, but it is left up to the Registrar of copyrights. In theory, it COULD be 1 per year, but I really doubt it.
I agree that you should not be able to sue if your copyright isn't timely registered. they seem to half the recovery amount down to $7,500 if you didn't have it filed.
I'm pretty sure that the number of staff will be expanded beyond a tribunal. They mention Officers, not Officer. Each Officer supported by 2 Attorneys. I can't imagine that a single Officer can handle the workload for the entire United States. As near as I can tell, the attorneys are present to advise the officer, not to stand as part of a tribunal. I suspect that the Officer will be a political appointee with no legal knowledge, which would be bad.
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Re: Re: Re: Re: Is it really unconstitutional? - Good points
I agree that you should not be able to sue if your copyright isn't timely registered. they seem to half the recovery amount down to $7,500 if you didn't have it filed.
Well my word, is that all? I can probably scrounge that up if I just tell my butler(because really, who can't afford one of those?) to check between the couch cushions.
Between the 'let them eat cake' comment by one of the politicians and the amounts discussed this bill has 'written by people for whom tens of thousands of dollars is a rounding error' slapped all over it.
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Re: Re: Re: Re: Re: Is it really unconstitutional? - Good points
Well, that is why they call it punishment. If the court decides that you violated the law, then they want to both "make the plaintiff whole" and "Discourage repeat behavior." Unless the court decides that you act in bad faith, the plaintiff doesn't even get attorney's fee's. Since I'm not sure that the copyright being registered or not actually changes the severity of what you did, that's not an argument I'm weighting a great deal against in this bill. There are other sections that I feel are MUCH more dangerous than if a copied work has been timely registered or not.
The rough part, as far as I'm concerned, is that if a defendant wins they are out the money for their attorney. On the flip side, if they loose, then they are out $15,000 (or actual damages and any profit they made from the copying), don't have to pay the plaintiff's attorney's fees but WILL have to pay their own attorney.
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Break someone’s bank account and sure, they’re probably not going to infringe upon another copyright. But the financial desperation faced by the average victim of these extrajudicial tribunals after that kind of punishment will likely encourage some other behavior that ends with an actual court of law getting involved.
As was said above: This law seems tailor-made for people whose bank accounts consider several thousand dollars to be a rounding error and not a life-or-death matter. One copyright troll with a reasonable bankroll could destroy a person’s life; imagine how many lives a multi-million-/multi-billion-dollar corporation could ruin with this shit.
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In other words: once this passes, it's over. The game is won by big business and we're all gonna be living on the streets until we die.
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Thing is its likely unconstitutional so even if it passes it not over and no one is gonna be living on the streets also it still needs to go to the Senate and it may not pass.
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Re: Re: Re: Re: Is it really unconstitutional? - Good points
Suggest you read 1505 of the bill passed by the House. Bringing a claim or counterclaim does not require a subsisting registration. However, action is to be held in abeyance until a registration has been granted.
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Re: Is it really unconstitutional?
But but ... Billy gets to
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Re: Re: Is it really unconstitutional?
Heh, in this case, if Billy gets to it counts as precedent. The statement by the copyright lawyer was that the executive branch can't do this, but we have an example where the executive branch DOES do this without, currently, running afoul of the constitution.
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Re: Re: Re: Is it really unconstitutional?
The executive branch has been violating the laws of the land for some time, this fact in no way makes any of it ok. Just because Congress has been dragging its feet and not impeaching the bozo does not mean any of those laws are no longer applicable. Precedent, afaik, occurs when a court makes a determination or a ruling in a case that was brought before it. Precedent does not occur when a court, DA or AJ decides to not prosecute the case, this in no way negates said law that was not enforced. Granted, it does send a signal to some that it is ok and they will not be prosecuted but the law remains for the rest of us to follow now doesn't it.
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Re: Re: Re: Re: Is it really unconstitutional?
Legally, it is not Unconstitutional until the Supreme Court says it is, because for right or for wrong they are the court of last resort who gets to decide what the constitution means. When I asked is it really unconstitutional, I meant in our current body of law would it likely be found unconstitutional by the supreme court. If the answer is no, then as far as the executive and judicial branch are concerned, it's NOT unconstitutional. You can often see what will likely be ruled as unconstitutional by what the court has done in the past. :) I would LIKE to see it found unconstitutional, but I think their copyright attorney didn't take some things into account.
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Re: Re: Re: Re: Re: Is it really unconstitutional?
I see, makes sense.
The SCOTUS has made many errors in the past, I do not see why that trend would not continue given the current make up of said court.
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Re: Re: Re: Re: Re: Re: Is it really unconstitutional?
I am completely happy now that there is now at least two persons that understand just what bunk has been coming from the supremist court in the land!
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Now is the time to panic
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We're all going to fucking die.
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Well it would mean that a corporation could send us an un-contestable bill for $30k at a whim.
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And it’s not as if that’d be the first dead person they sued.
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After this passes, derivative work of any kind will officially become a thing of the past, at least in America. Everyone will bend the knee as soon as they are sued and there will be no pushback. It's all over. All we can probably expect from this site anymore is Masnick's suicide note.
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That last line was wholly unnecessary. If you have a personal problem with Mike, take it up with him instead of implying you want to see him dead.
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Re: Copyright best and brightest right here on full display!
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Service is supposedly required, but as it will not require formal proof of service, it is quite possible the service will be indistinguishable from mail we would throw out as spam.
But if we actually get it, the law actually has an opt-out clause which shuts this down...which needs to be filed within 30 days of the unverified informal service. Oi.
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If there's no proof of service, why would a rightsholder even bother? Couldn't they just claim they sent a notice? "Oh yeah, we totally sent that. Trust us. $30k please."
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Prenda’s best and blightest, upon hearing this: “Why the fuck didn’t we wait until now to pull our shit?”
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I was thinking that prenda gave this congress the idea.
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Would asking YouTube to pass it on count as service, followed by demands for contact details so that they can collect their winnings?
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"it will not require formal proof of service"
I imagine this will not survive court.
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Once somebody can afford to get it in front of a court, which will be too late for bankrupted by this law.
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Let them collect it!
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One has a chance to win, the other ensures defeat
No, now is the time for those that live in the US to email or preferably call in to express your opposition to this disaster of a bill.
Panicking ensures that it will be passed, voicing your opposition at least leaves open the possibility that enough politicians will be pressured to kill it off before it can be passed.
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Re: One has a chance to win, the other ensures defeat
I have no faith whatsoever in government to do anything in the best interest of the citizens of this country.
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Re: Re: One has a chance to win, the other ensures defeat
Sure, but that doesn't mean you can't use their self-interest to get what you want. Politicians will trip over themselves to give richer individuals/groups special treatment in exchange for 'donations', but even then they know that they still need to get re-elected in order to keep getting that money, and if enough people make clear they aren't happy with a particular action/bill, to the point that those election odds are threatened, then there's a good chance that they will vote accordingly.
It doesn't always work to be sure, but the odds are vastly better than if people don't do anything because they assume they've already lost.
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A clause to, hopefully, reduce trolling
I'm reading the CASE Act and there does seem to at least be a section to help reduce some of the trolling:
“(2) BAD FAITH CONDUCT.—Notwithstanding any other provision of law, in any proceeding in which a determination is rendered and it is established that a party pursued a claim, counterclaim, or defense for a harassing or other improper purpose, or without a reasonable basis in law or fact, then, unless inconsistent with the interests of justice, the Copyright Claims Board shall in such determination award reasonable attorneys’ fees and costs to any adversely affected party of in an amount of not more than $5,000, except that—
“(A) if an adversely affected party appeared pro se in the proceeding, the award to that party shall be for costs only, in an amount of not more than $2,500; and
“(B) in extraordinary circumstances, such as where a party has demonstrated a pattern or practice of bad faith conduct as described in this paragraph, the Copyright Claims Board may, in the interests of justice, award costs in excess of the limitations under this paragraph.
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Re: A clause to, hopefully, reduce trolling
(2) BAD FAITH CONDUCT.
Like the clause in the current DMCA for false filing, which to date has been awarded Once?
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Re: A clause to, hopefully, reduce trolling
Yeah, it seems about as effective as Article 13's "Nerd harder to avoid all mistakes" measure.
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Fee's and recovery
I find the most telling thing about this bill is that the Copyright owner who sues has the the fee's for legal council uncapped, while a defendant who proves bad faith has their legal fee's capped at $5,000.
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Re: Fee's and recovery
Yeah, I noticed that too.
One could almost believe that (in this) CASE (it) is written to tilt the balance to the plaintiffs advantage...
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Mike Masnick just hates it when copyright law is enforced.
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The general public just hates it when a scam is allowed to continue with its nefarious activity.
Many times laws have remained on the books only to be ignored by the general public because the public felt that the law is wrong.
We have enough scammerz already, we really do not need any more.
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Don't feed the troll throwing out blatantly obvious bait, just flag and ignore.
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They make these cases so expensive that it is unlikely these go to a jury, but get settled long before. Juries can decide a case according to law or how they feel about the law itself. That is why juries are the last check on this government.
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Re: see you in copyright court, bring your checkbook
I actually own the copyright on that phrase bro.
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Everything about this bill sucks to the very limits of inscrutiblity written by greedy lawyers on the take.
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Sir Roger L'Estrange
Maybe Sir Roger L'Estrange could implement the law.
...
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That Congress is rushing this through, ignoring all the concerns, is a travesty and should not be allowed.
It shows that those who want this made law, like so many other politicians, are as corrupt as they come! No one who was truly representing citizens could be so unthinking and uncaring as this without getting personally rewarded! Disgraceful!
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I called my Congressman today and asked for a No vote. Gave a brief explanation why to the receptionist.
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That comment to the receptionist is probably on a note that is stuck to the side of her trashcan liner bag!
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Isn't that what congress and doj and politicians do? They make laws that will allow the laws to be enforced to bring in more revenue from the public to fill their coffers.
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Something something all of these cases where the feel/vibe of music is resulting in awards. Everyone start filing because they sang those 4 notes first & lets bury it.
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Mike Masnick shilling for corporate turds in the hope they don't have to compensate artists.
Hey Mike- Do the world a huge favor and go die in a fire.
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[Shitheel AC asserts facts not in evidence]
(and needs either more or fewer drugs)
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I wonder if he has noticed he is on a corporate website.
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Hi, antidirt.
How's that Paul Hansmeier defense fund coming along?
Wasn't Prenda Law supposed to win their appeal, enforcing copyright? How about Evan Stone? Lincoln Bandlow? Keith Lipscomb?
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You seem upset. Have you tried meditation?
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meditation or medication?
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Looks like some little AC has a full nappy and is past his beddie-by time.
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Mike Masnick shilling for corporate turds in the hope they don't have to compensate artists.
Worrying about copyright trolls bankrupting everyday Americans for posting to social media is "shilling for corporate turds"?
The ACLU agrees with me. Are they "shilling for corporate turds" too?
Hey Mike- Do the world a huge favor and go die in a fire.
You seem nice.
One could just as easily turn the argument around and say that passing this bill is the one that would help "corporate turds" by allowing the big copyright holders to ramp up efforts to shake down the public for money they don't deserve.
Anyway, have a nice day. I do hope that one day you'll understand that some of us actually are trying to help and maybe you should stop wishing death upon people.
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Re: Re:
That twerp will stop wishing death on people when THE problem becomes HIS problem. I'll never understand it, but that's how it works.
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A minor note
@Mike, in the "filed under" section under the article, it looks like you have two keywords, "$30" and "000". I think your article submission algorithm got confused about a keyword with a comma in it.
Too bad Techdirt article keywords aren't legally binding.
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It's like SOPA all over again
That Congress is rushing this through, ignoring all the concerns, is a travesty and should not be allowed.
Yep, just like SOPA. I suppose they've all had enough of experts.
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Re: It's like SOPA all over again
And just like SOPA it's going to sail thru unless we can generate some outrage. They are being paid way to much to ram this thru.
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Re: Re: It's like SOPA all over again
Tho some are saying its unlikely to pass the Senate.
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Re: Re: Re: It's like SOPA all over again
Convince them it's a Dem bill to generate $$$ for Democratic candidates. Get the GOP Senate to destroy it to own the libs. Then take a long hot shower to wash away that horrible feeling you get when you know you've done something below the line of acceptable discourse. I'm sorry for even suggesting it but that's the world we live in.
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I could see Bitcoin becoming popular if this goes through.
If it is done right, you can hide your money with Bitcoin in a way where it cannot be found.
I know this, because when my father had his only at fault accident 8 years ago, I helped him hide his money in Bitcoin, to help avoid being sued, becuase his money was well hidden, and he was never sued, because of thee way that Bitcoin works.
I cashed it out a couple of years later when my father died, without any problems
And we did not break any laws by hiding his money with Bitcoin so that lawyers could never find it.
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Good reason repeal copyright: positive feedback loop
Copyright monster in positive feed back loop. Money copyright "owners" use money from copyright monopoly for more rights (but no responsililitys). Need repeal all copyright.
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