You'll Need Fifty Stimulus Checks To Pay The Damages You Might Get Hit With Under The CASE Act

from the so-stupid dept

It was only mid-day yesterday that it was confirmed that Congress has slipped in two controversial copyright provisions into the must-pass government funding bill. Last night, as everyone expected, that must-pass bill did indeed pass, and it will soon be law.

There are many, many reasons to be frustrated about this. First, just the way this was done is incredibly stupid. The government waited until the very last minute (with a couple of "extensions") to work out this agreement on a combination of the COVID relief bill (which is way too small and way too late for many, many people) and a bill to actually fund the government and avoid a shutdown. It's already ridiculous that we have to do this government funding bill each year, especially considering that Congress already approves a budget earlier in the year, and the appropriations bill is really just a fight over how to apportion what Congress has already agreed to spend. And then, because the appropriations bill is considered a "must pass" to keep large parts of the government funded, Congress lights it up like a Christmas tree with totally unrelated bills they couldn't get passed through normal process.

Incredibly, some politicians, like Senator Chris Murphy of Connecticut, seem proud of this practice:

I get why he's proud of getting some things into the bill, and many of the things he may be proud of are good. But many of them do not belong in this bill and should not be in a 5,000 page bill that was revealed mid-day and voted on hours later.

Incredibly, while the bill does have 2,000 pages of actual appropriations details, the other 3,000 pages are totally unrelated bills that Congress couldn't pass through the rest of the year. Even if you like the bills, even if you are mad that Congress is gridlocked at other times, that's no excuse to support this awful undemocratic process. Everything about it is bad.

Now, lots of people are still combing through the bill to find all the awful landmines that it's too late to do anything about, but the two that we've been talking about here are the copyright provisions. I've already explained multiple times why the felony streaming bill and the CASE Act are extremely problematic, so I won't go over either again. I will note that neither final provision is as bad as they were in earlier versions. Both were somewhat limited from truly terrible provisions to what is today merely awful. But that's nothing to celebrate.

As I said yesterday with regards to both bills, copyright law is controversial for a wide variety of reasons, but the biggest one is this: small tweaks to copyright law can have a massive impact on expression. Few people are even willing to grapple with the fact that significant parts of copyright law raise 1st Amendment issues. And when you rush through both of these bills (the felony streaming bill received literally no discussion or debate), you impact speech in a massive way. The felony streaming bill, even with its restrictions to platforms, may scare off many platforms from being willing to host streaming content, despite it being a key way in which many people -- especially younger generations -- express themselves these days.

The CASE Act, similarly, threatens to unleash a new generation of copyright trolling, at a time when we already have too much copyright trolling, threatening and shaking down people for money over incidental and accidental infringement. On top of that, especially in the midst of a pandemic when so many people are stuck at home and communicating, living, and working virtually, doing perfectly normal things can and will be seen as infringing. Nearly 15 years ago, law professor John Tehranian wrote about how on a random day that he tracked, he realized he (a copyright law professor!) probably committed 83 acts of infringement.

As we wrote a few years back, the only reason that copyright doesn't destroy speech is that he world has recognized a concept of copyright toleration -- which is that, more or less, copyright holders have mostly looked the other way at incidental and accidental infringements that happen all the time. The entire point of the CASE Act is to slam the door shut on the entire idea of copyright toleration, and open the floodgates for copyright holders to shake down basically anyone for such incidental uses -- telling them they could owe up to $30,000 as assigned by a non-judicial tribunal housed in the Copyright Office itself.

Supporters of the CASE Act say it's no big deal because you can opt-out of the process if you don't like it. But the opt-out process is unclear and potentially confusing. And, of course, in doing so, you are poking the copyright holder, and potentially egging them on to file an even more disastrous federal copyright lawsuit against you. But, honestly, just the mere threat of facing $30,000 fines from this new tribunal will cause many to shut up. It will cause many to pull down speech or never make it at all, because who wants to deal with that threat?

And, as law professor Eric Goldman notes, we did all this to get a stimulus package that will give a mere $600 to individuals... but that $600 likely won't cover your CASE Act bill, and you'll need many more stimulus checks to deal with the fact that you promoted a song you liked. It's a complete travesty.

Filed Under: 1st amendment, case act, chilling effects, copyright, covid, expression, felony streaming, speech, stimulus, tribunal

Congress (Once Again) Sells Out To Hollywood: Sneaks CASE Act And Felony Streaming Bill Into Government Funding Omnibus

from the but-why? dept

As we warned about earlier this month, it appears that Congress has in fact put two very controversial copyright provisions into the government funding "omnibus" bill that will be voted on later today. As you may have heard, last night Congress worked out a "deal" on both a $900 billion Covid relief/stimulus package and the giant $1.4 trillion omnibus government funding bill, which is being voted on today. There had been concerns raised all month about how -- under pressure from Hollywood -- Congress might try to sneak two dangerous copyright provisions and one trademark provision into the omnibus.

Since the "deal" was announced last night, people have been scrambling to find out what's actually in the fucking bill which is being voted on shortly. It's just come out that, indeed, all three controversial copyright and trademark provisions are in the bill. The CASE Act will supercharge copyright trolling exactly at a time when we need to fix the law to have less trolling. And the felony streaming bill (which was only just revealed last week with no debate or discussion, includes provisions that are so confusing and vague no one is sure if it makes sites like Twitch into felons.

The fact that these are getting added to the must pass government funding bill is just bad government. And Congressional leadership should hear about this.

The full omnibus bill is over 3,000 pages long, so you can search through it for your favorite bit of nonsense. Felony streaming is on page 72. The CASE Act starts on page 77.

There's a reason that copyright is generally controversial. Small changes can not only have a massive impact, that impact can be on the public's ability to express themselves. The idea that two such bills should be jammed through in this manner is a total and complete travesty. People should be mad about this and should hold the Congressional leadership of both parties responsible. This is not good governance. This is sucking up to Hollywood at the expense of the public.

Filed Under: case act, congress, copyright, felony streaming, free speech, omnibus, small claims, thom tillis

ACLU Tells Congress: Do Not Add Copyright Trolling Bill To Government Funding Bill

from the this-is-not-a-bill-to-sneak-through dept

Last week we wrote about an effort in Congress, which appeared to be succeeding, to try to sneak through a controversial (and likely unconstitutional) copyright reform bill by adding it to a must-pass government funding bill. The ACLU has now stepped into explain why this a bad idea and should not move forward:

The American Civil Liberties Union, on behalf of its more than three million members, supporters, and activists, writes to you today regarding recently reported efforts to include S. 1273/H.R. 2426, the CASE Act in upcoming legislation to fund the government. The CASE Act is a controversial provision that would significantly alter the enforcement of copyright law and would have the unintended consequence of undermining free expression online. Because we recognize that it is essential to fund the federal government, particularly during the ongoing public health crisis, we ask that you decline to include the CASE Act in the upcoming funding bill and instead allow that provision to proceed through regular order where Members will have an opportunity to address the significant concerns raised by the bill before it passes into law.

Many supporters of the bill insist that those of us opposing it are against the idea of helping copyright owners, but nothing is further from the truth. What we oppose is the method set up in this bill, which will enable much more copyright trolling in a manner likely to stifle free speech. As the ACLU notes:

As we have said before, we do not oppose the CASE Act’s central idea of creating a small claims process to allow copyright owners to assert infringement and be awarded damages for the harm caused. There is evidence that strongly suggests a need for such a system, as many copyright holders have argued. However, because the CASE Act could affect every person that communicates online, we believe that changes are needed to ensure adequate safeguards for due process and the protection of the freedom of speech. In particular, the bill should be amended to provide for access to meaningful judicial review, a reduction in the damages available for small claims violations, and additional safeguards to ensure the process is procedurally fair for both parties. In order for those essential changes to be made, we ask that you decline to include this bill in any must-pass government funding bill, and instead allow the CASE Act to be considered through the regular order process where Members will have the opportunity to address these concerns.

What's been most upsetting and annoying throughout the process of the debate on this bill is the utter unwillingness of the bill's supporters to engage with people who have pointed out these fundamental problems with the bill. If they actually did engage and fix the problems in the bill, it would likely gain much more support across the board. Instead, they continue to try to shove it through in this form, using sneaky processes like adding it to the government funding bill.

Filed Under: case act, congress, copyright, government funding, small claims
Companies: aclu

Nancy Pelosi Sells Out The Public: Agrees To Put Massive Copyright Reform In 'Must Pass' Spending Bill

from the why? dept

I know everyone is focused on Trump's attempt to take away Section 230 in the NDAA, but an equally important issue is that members of Congress have been trying to do Hollywood's bidding and sneak massive copyright reform into a must-pass government appropriations bill. The CASE Act has many problems that we've discussed, including the fact that it would unleash a wave of copyright trolling for people accidentally or innocently sharing works they don't realize are covered by copyright. There are also significant Constitutional problems with it, in that it routes around the Title III courts by handing disputes about private rights to the executive branch. That's not allowed.

But rather than actually discussing and debating those issues, and fixing the bill to make sure it is constitutional and protects the public, we've heard from three different sources that Nancy Pelosi has given the go-ahead in the House to include the CASE Act in the spending bill. As we said earlier this week, if you're trying to ram through a bill by adding them to an appropriations bill, it's because you know it has problems and will cause major issues and you just don't care because the politics of pleasing donors is too important. Hollywood has been screaming for this bill, and Pelosi has agreed to put it in.

If you're a constituent of Pelosi, I would highly recommend reaching out to her office and making it clear that you absolutely oppose any effort to attach the CASE Act to any appropriations bill. To ignore the many concerns that have been raised about the bill and what it will do to people across the country (especially in the middle of a pandemic) is a travesty. There is no need to pass this bill now, and there is certainly no need to do it in this way. Even if you're not a Pelosi constituent, it's worth reaching out to your Congressional Representatives. The good folks over at EFF have a handy dandy form under the accurate headline: "Don't let a quasi-court bankrupt internet users."

Many people have raised thoughtful critiques of the CASE Act, and there are many suggestions out there for how the bill can be fixed. To date, Congress has ignored those fixes. This is a bill that is highly controversial and should not be put into law through a sneaky, underhanded move like this. Make sure that Congress understands this.

Filed Under: appropriations, case act, christmas tree, congress, copyright, copyright office, copyright trolls, hollywood, nancy pelosi, small claims

'Tis The Season: Congress Looks To Sneak In Unconstitutional Copyright Reform Bill Into 'Must Pass' Spending Bill

from the if-you-have-to-sneak-around... dept

If you have to sneak your transformational copyright bill into a "must pass" government spending bill, it seems fairly evident that you know the bill is bad. Earlier we talked about how the White House is trying to slip a Section 230 repeal into the NDAA (military appropriations) bill, and now we've heard multiple people confirm that there's an effort underway to slip the CASE Act into the "must pass" government appropriations bill (the bill that keeps the government running).

What does keeping the government running have to with completely overhauling the copyright system to enable massive copyright trolling? Absolutely nothing, but it's Christmas season, and thus it's the time for some Christmas tree bills in which Senators try to slip in little favors to their funders by adding them to must-pass bills.

We've detailed the many problems with the CASE Act, including how it would ratchet up copyright trolling in a time when we should actually be looking for ways to prevent copyright trolling. But the much larger issue is the fact that the bill is almost certainly unconstitutional. It involves the executive branch trying to route around the courts to set up a judicial body to handle disputes about private rights. That's not allowed.

At the very least, however, there are legitimate concerns about the overreach of the CASE Act, and, as such, those supporting it should at least be willing to discuss those issues honestly and debate them fairly. Slipping them into a must-pass government spending bill certainly suggests that they know that they cannot defend the bill legitimately, and need to cheat to make it law.

Filed Under: appropriations, case act, christmas tree bill, copyright, copyright troll, must pass, spending

Why Do Republican Senators Seem To Want To Turn Every Website Into A Trash Heap Of Racism & Abuse?

from the important-questions dept

Imagine if you could be sued for blocking other users on Twitter, or limiting who could see your Facebook posts. Or if every website were full of racial slurs, conspiracy theories, and fake accounts. Parental control tools could no longer prevent your kids from seeing such heinous content. If that sounds like the Internet you’ve always wanted, then you’ll love Republicans’ new “Online Freedom and Viewpoint Diversity Act” and “Online Content Policy Modernization Act!”

In 1996, Congress agreed, almost unanimously, that users, websites, and filtering tool developers shouldn’t face such legal risks and that it was imperative “to remove disincentives for the development and utilization of blocking and filtering technologies.” That’s why Congress enacted Section 230 of the Communications Decency Act. But a few weeks ago, after yet another Trump tweet raging about “biased Big Tech,” three Republican Senators rushed to introduce legislation that would turn the law on its head. Sen. Lindsay Graham followed suit with his own bill that would do essentially the same thing. Trump’s Department of Justice has proposed to gut Section 230. Never mind that Section 230 was authored by a Republican congressman who still defends the law.

Today, Section 230 broadly protects users, websites, and developers of filtering tools (built into operating systems, search engines, or services like YouTube — or that you can install yourself) when they exercise their First Amendment rights to decide what content or users to block or “restrict access” to. This new bill would sharply curtail such content moderation. To avoid liability, a defendant would have to prove the content was “obscene, lewd, lascivious, filthy, excessively violent, harassing, promoting self-harm, promoting terrorism, or unlawful.” That covers only a fraction of the Internet’s awfulness. Even the vilest statements could not be removed or filtered unless tied to the harassment of specific users or the clear glorification of violence. The bill doesn’t cover spam, fake accounts, clear hate speech, or clear misinformation. That last exclusion is intentional: it was Twitter’s timid moves in May to put warning labels on Trump’s tweets about mail-in voting that quickly led the White House to issue an executive order calling for legislation to “reform” Section 230.

Republicans aim to stop content moderation for “political” reasons. But it would invite litigation over even truly neutral restrictions. Nextdoor.com limits discussion of national political issues to special “groups,” so that the site can focus on hyper-local issues. But the bill would no longer protect such segmentation. If a medical school wanted to keep its students focused on studying science rather than arguing about politics, enforcing that rule wouldn’t be protected either.

Republicans complain about “Big Tech,” but their bill would expose everyone to lawsuits. Trump himself has invoked Section 230 to avoid liability for retweeting allegedly defamatory material. FoxNews.com reserves the right to block “offensive” comments on its site, as Breitbart.com does for “inappropriate” content. Even Parler, the conservative “free speech” alternative to Facebook reserves broad discretion to remove any content that they consider “disruptive” or that creates “risk” (not just legal risk) for Parler.  

Section 230 protects not just the providers but users engaged in content moderation — such as those who manage Facebook pages and groups. Reddit relies on users to moderate its 130,000 “subreddit” communities, while the English Wikipedia depends on 1,131 volunteer administrators to resolve conflicts. Would you volunteer if you knew you could be sued by disgruntled users?

Republican proposals would open the door to creative plaintiffs’ lawyers to sue anyone who feels aggrieved for being “censored.” Yet it won’t do what Republicans want most: allow the FTC, Republican state attorneys general, and MAGA activists to sue “Big Tech” for “deceiving” consumers by not delivering political “neutrality” as (supposedly) promised. The reason consumer protection agencies have never brought such suits, and courts have tossed out private lawsuits, isn’t Section 230. Back in 2004, left-wing activists petitioned the FTC to sanction Fox News for not delivering on its “Fair and Balanced” slogan. The Republican FTC Chairman dismissed the petition pithily: “There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.” Offline or online, the courts simply won’t adjudicate questions of media bias because they’re inherently subjective.

Section 230's protections are vital to the Internet, where both users and providers make editorial decisions about content created by third parties at a scale and speed that are simply unfathomable in the world of traditional publishing. This new bill attempts to use Section 230’s indispensability to coerce the surrender of First Amendment rights. That violates the “unconstitutional conditions” doctrine. In 1969, the Supreme Court upheld imposing special “Fairness Doctrine” conditions on broadcast licenses only because it denied broadcasters full First Amendment protection. But the Court has repeatedly said that new media providers enjoy the same free speech rights as traditional publishers — and has struck down fairness mandates on newspapers as unconstitutional.

Republicans fought the Fairness Doctrine for decades. Their 2016 platform demanded “free-market approaches to free speech unregulated by government.” Yet now they want an even more arbitrary Fairness Doctrine for the Internet. They should remember what President Reagan said when he ended the original Fairness Doctrine in 1987: “the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.”

If, despite a lack of any solid evidence, conservatives persist in believing that social media are biased against them, they should vote against it with their clicks and dollars. Switch to Parler, if you like. Just don’t be surprised when you find content like this on the site:

By comparison, #Section230 has 262 “parleys” (posts) — roughly 20% as many as #JEWS). And this is just the tip of a very large iceberg that includes “parleys” like this (note the gruesomely pro-Holocaust account name:

Parler has chosen not to remove such content — but Section 230 would protect the site if it did. Not so if Republicans got their way.

Let that sink in. When Republicans complain about “hate speech” being used as an excuse for censoring conservatives, this is among the content they’re saying should stay up. Because... “bias.”

Ironically, Parler has engaged in selective moderation of hate speech to make the site seem just respectable enough to attract Republican politicians like Sens. Ted Cruz, Sen. Rand Paul, and Rep. Devin Nunes. The site clearly blocks any variant of the n-word in hashtags — which are wildly popular on Gab, which Parler has rapidly eclipsed as the “free speech” network. Gab offers a clear picture of what social media would look like if Republicans succeeded in narrowing Section 230’s protections. This is what an “uncensored” Internet looks like:

If anything, it’s difficult to appreciate how widespread such content is on both Parler and Gab because, unlike Facebook and Twitter, they only allow users to search hashtags (and names of users and groups), not the contents of posts. But one thing’s clear: while Parler blocks the n-word in hashtags, they definitely don’t block it in posts.

Is this really what Sens. Wicker, Blackburn and Hawley really want the Internet to look like? Do they really believe Section 230 shouldn’t protect websites when they remove such heinous content? Or do they believe that that removing such content would still be covered by Section 230 because it would fall into the category of “harassing” content already explicitly protected by Section 230.

The NTIA’s petition to have the FCC rewrite Section 230 defines “harassing” content as having the “subjective intent to abuse, threaten, or harass any specific person.” You don’t have to be a lawyer to see how narrow that definition is. If a neo-Nazi posts something like one of the above hashtags as a reply to a black or Jewish user, yes, that might qualify as “harassing,” but simply ranting about both in his own posts would not be directed at any specific person — so websites wouldn’t be protected for removing it. Republican lawmakers might claim they take a broader view of what should qualify as “harassing,” but it’s hard to see why any court would agree. In any event, what Members or their staff say they intend is irrelevant; what matters is the plain text of the statute. If they want to make their intention clear, they need to pick other words and put them in the statute.

More importantly, hate speech is just one category of noxious content that websites could be sued for removing, hiding or labeling if Republicans have their way. The same goes for conspiracy theories, misinformation about COVID, vaccines, and voting, etc. For example:

Could moderating anti-vaccination misinformation be covered by the term “promoting self-harm?” Again, that’s a huge legal stretch — especially because the “harm” at issue here is primarily not to the “self” but to the children of parents duped by anti-vax content, and to those in society who get infected because vaccination rates fall below levels needed to achieve herd immunity. Even if a court decided that the term might cover some anti-vax content, websites would have to fight it out in court, and courts might rule differently in different cases.

If you want those things for yourself and your children, go to Gab or Parler. Just, please, stop trying to turn the rest of social media into those sites. And don’t complain when those sites fail to attract advertising. What respectable brand in America would want to advertise its products next to such content?

President Reagan’s answer would have been clear: private companies should be free to make their own decisions, especially when the alternative is a true cesspool of everything that is worst about humanity. Sadly, today’s Republicans don’t seem to care about anything beyond making political hay out of repeating the same baseless claims that they’re being persecuted.

Hashtag: #Snowflakes.

Filed Under: 1st amendment, case act, content moderation, doj, lindsey graham, online content policy modernization act, online freedom and viewpoint diversity act, section 230
Companies: facebook, gab, parler, twitter

Senator Lindsey Graham Must Be Desperate For Donations; Announces Terrible Bill That Mashes Up Bad 230 Reform With Bad Copyright Reform

from the it's-bad,-get-rid-of-it dept

Senator Lindsey Graham is in a tight re-election campaign that he might just lose. And he's doing what politicians desperate for campaign cash tend to do: releasing a lot of absolutely batshit crazy bills that will pressure big donors to donate to him to either support the bill, or to get him not to move forward on it. It's corrupt as hell, but is standard practice. And the best of these kinds of bills are ones that pit two large industries with lots of lobbyists and cash to throw around against one another. For many years the favorite such bill for this was a bill about performance rights royalties for radio play. This would pit radio broadcasters against the music industry, and the cash would flow. Every two years, as the election was coming, such a bill would be released that was unlikely to go anywhere, but the cash would flow in.

More recently, the goal has been to target the big internet companies. And, boy, Linsdey Graham's campaign must be struggling, because he's decided to take two horrible, awful bills that would harm the internet and mash them together into a single bill that is set for markup by the Senate Judiciary Committee next week. This new bill, entitled the "Online Content Policy Modernization Act" simply combines the terrible and unconstitutional CASE Act (to create a quasi-judicial court in the Copyright Office to review copyright claims) with some of the recently released (and also horrible and unconstitutional) "Online Freedom and Viewpoint Diversity Act" which would rewrite Section 230 to remove the ability to moderate "otherwise objectionable" content without liability, and would, instead, insert a limited list of what kinds of content could be moderated without liability.

Both of these are bad ideas, but both of them are specific threats to the open internet -- and the kinds of things that Senator Graham knows he can fundraise on. Both bills are garbage, and Senator Graham likely knows this -- but he's not in the Senate to actually legislate. He's there to stay in power, and there's a real chance he might lose this November. So I guess it's time to break out the really stupid bills.

Filed Under: case act, cda 230, copyright, dmca, lindsey graham, online content policy modernization act, section 230

Senators Wyden And Paul Put A Hold On Dangerous CASE Act; Will Propose Alternative

from the no-more-copyright-trolls dept

Last week we noted that the House (overwhelmingly) voted in favor of the CASE Act, which is presented as a "small claims court" for copyright issues, but which has significant Constitutional issues, and would almost certainly lead to an uptick in copyright trolling activity. As we noted, the bill still needed to go to the Senate, and it appears that this is (at least for now) being blocked by Senators Ron Wyden and Rand Paul who have put a hold on the bill, and will introduce an alternative approach.

Sen. Ron Wyden... is crafting alternative legislation to a bill that overwhelmingly passed the House and would create a voluntary small claims board within the Copyright Office... a Wyden aide told us. He and frequent partner here Sen. Rand Paul... recently placed holds on the Copyright Alternative in Small-Claims Enforcement (Case) Act... according to aides.

Wyden notes that the concept of enabling more access to copyright holders to an enforcement/remedy makes sense, but he has problems with the nature of the CASE Act:

Wyden says he agrees small copyright owners "are less likely" to reap the full benefits of the copyright system than major corporations like Disney or Sony. But he said the bill would "create an extrajudicial, virtually unappealable tribunal that could impose statutory damages of $30,000 on an individual who posts a couple of memes on social media, even if the claimant sustained little or no economic harm." The threat of litigation could stifle fair copyright use and free expression and enable copyright troll harassment, he said.

From that, it sounds like Wyden is working on some sort of compromise version that deals with the problems (including the fact that it's probably unconstitutional) and seeking a better approach for setting up a form of a small claims court for copyright violations. He did this last year with the Music Modernization Act as well, taking a really, really bad bill, and turning it into something that was actually okay (not great, mind you, but was a general improvement -- and one that got more or less everyone on board). Hopefully this new bill will do the same.

Unfortunately, it looks like those who have already decided the unconstitutional pro-copyright trolling version is the approach to take don't really want to deal with Wyden and Paul seeking a better approach:

Bill sponsor Sen. John Kennedy... told us of "two headaches" in the Senate Thursday. "We're working on it. I'm going to make them an offer they can't refuse," he said, declining to name names.

Hey, Senator John Kennedy, did you license that quote from whoever holds the copyright on The Godfather? Or are you ready to pay up to $30,000 for it?

Either way, that quote is fucked up. Wyden and Paul are seeking to make sure the bill is (1) Constitutional and (2) won't destroy lives. And Senator Kennedy thinks that's deserving of a Godfather-style threat? What is wrong with him?

Filed Under: case act, copyright, john kennedy, rand paul, ron wyden, senate, small claims

House Overwhelmingly Votes To Empower Copyright Trolls And To Bankrupt Americans For Sharing Photos

from the sad dept

Perhaps not a surprise, but Congress did what Congress does and voted overwhelmingly to approve the CASE Act, which is better described as the "we need more copyright trolling" act, and which is very likely unconstitutional. Only 6 Reps voted against the bill, with 410 voting for it (15 didn't vote -- including, Doug Collins who infamously laughed that anyone might be inconvenienced by a "small" $30,000 fine). I will say kudos to the six reps who voted against it: Amash, Davidson, Gianforte, Kelly, Massie, and Norman. Frankly, the most surprising "yes" vote here was Rep. Lofgren, who historically has been great on copyright (and other issues). I'm surprised to see her on the wrong side of this bill and helping to enable trolling like this.

Rep. Hakeen Jeffries, who was the sponsor of the bill -- and who (coincidentally, I'm sure) offered lobbyists the chance to join him at the recording industry's biggest party for just a $5,000 contribution -- made a bunch of utter nonsense statements in support of the bill:

“There is no gun that is being held to anyone’s head, because the small claims court like tribunal is voluntary in nature,” Jeffries told The Verge. “Any argument made to the contrary, represents a deliberate attempt to misrepresent what’s at stake as part of the effort to do away with the content copyright laws that have been part of the fabric of our democracy since the founding of the Republic and in fact the Constitution.”

“The internet doesn’t change the Constitution,” Jeffries continued.

Sure. The internet doesn't change the Constitution. But Congress sure has gone a looooooooong way in changing copyright law, away from its Constitutional roots, to the point that it is almost unrecognizable. Let's remember that the Constitution only provides for copyright law if it is used to "promote the progress of science," which at the time it was written meant "learning and education." What about the CASE Act promotes education? Can Jeffries answer that?

Also, the Constitution promised us that copyright should only be for "limited times." Yet, Congress has extended copyright over and over and over again such that no one can honestly claim that it matches up with the initial understanding under the Constitution.

So, sure, if you're going to cite the Constitution as the reason for your new copyright law, I'm going to point out that, as originally interpreted in the very first Copyright Act, it was believed that the Constitution only provided for 14 years of protection for "maps, books, and charts." What we have today is kinda different, don't you think? Congress has made a mockery of the Constitutional concept of copyright. Rather than 14 years, it's "life plus another 70 years." Instead of "maps, books, and charts" it's literally every newly created work. Instead of only applying to things that are registered, it now applies to everything. Instead of applying almost entirely to commercial operations, it applies to everyday sharing. If you're going to cite the constitution for favoring a massive expansion of copyright trolling, you might want to at least acknowledge how unlike the original concept of copyright the law has become today. Or did the lobbyists paying $5,000 a pop to party with you at the Grammies forget to tell you that part?

The bill still needs to go to the Senate, but given the overwhelming vote in the House, it's not encouraging. The only bright side is that we'll have plenty of new stories to cover as this law gets widely abused by trolls.

Filed Under: case act, congress, copyright, copyright office, copyright trolling, hakeem jeffries, hosue, jerry nadler, small claims

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."

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.

Filed Under: $30000, case act, copyright, copyright trolling, doug colling, sharing, small claims, social media