There is certainly more than enough room in this world for new copyright laws that would improve the lives of artists and their audiences. And then there’s the Copyright Alternatives in Small-Claims Enforcement Act (CASE Act), a proposal which doesn’t help the artists it claims to be for and would cause a lot of damage to regular Internet users. And yet, in 2019, the CASE Act was not only introduced again, it was continually voted on without a single serious conversation about its flaws.
In theory, the CASE Act is meant to help small- and medium-sized artists enforce their copyrights without the expense of going to actual court. In practice, the CASE Act won’t really work that way.
What the CASE Act does is empower the Copyright Office to create a Small Claims Board that receives and reviews copyright complaints, sends out notices to the alleged offenders, and metes out judgment. If you get one of the Copyright Office’s notices, you have 60 days to “opt-out” of the board, and then the complainant can choose to take you to court. If you don’t, you’ll have to defend yourself to the Copyright Office. If you ignore it, the Copyright Office can decide that you owe huge amounts of money by default. And if you are caught up in this system, you’ll have an extremely limited ability to appeal.
The CASE Act has appeared many times over the last few years, but this year it made it to vote after vote without a single hearing where its flaws could be addressed.
And make no mistake, whatever its good intentions, the CASE Act is extremely flawed.
First of all, the opt-out mechanism—instead of opt-in—isn’t quite as voluntary as it sounds. The CASE Act declares that opting out must happen in writing and “in accordance with regulations established by the Register of Copyrights.” This does not promise that opting out will be a simple process, understandable to everyone. The goal of the system is presumably to move as many cases through it as possible, the Copyright Office has little incentive to make opting out fair to respondents and easy to do. In fact, the Copyright Office’s tends not to issue user-friendly regulations, as shown by its exemptions for Section 1201 of the DMCA.
That means that sophisticated actors—the ones most likely to be able to pay and/or have truly infringed, the ones artists truly want in this system—will be able to hire lawyers to opt-out while regular Internet users could find themselves more at risk.
Second of all, a system that puts regular Internet users at risk is fertile ground for copyright trolls. Trolls can file complaints and then contact people asking for less money than the CASE Act empowers to Copyright Office to force you to pay (it can go up to $30,000 per proceeding), and fear of bankruptcy will encourage people to accept the settlement offer, regardless of the actual merits of the case.
Third, the CASE Act could chill protected expression, much the way DMCA takedown abuse has. Especially since the CASE Act does not involve real courts, where protections against trolls and protections of fair use have been hard fought for and won.
In 2019, without a hearing on the bill, the CASE Act was voted out of the Senate Judiciary Committee. That pattern repeated with the House Judiciary Committee, with the added bonus of Representative Doug Collins of Georgia laughing off the need to discuss this bill by saying the $30,000 limit amounted to “truly small claims,” even though the median household income was $63,179 in 2018, making $30,000 almost half of that income.
Eventually, in October, the CASE Act passed the House by a vote of 410-6, leaving it up to the Senate to stand up for Internet users by rejecting the CASE Act.
2019 saw Congress repeatedly fail to consider the true ramifications of the CASE Act, opting for what looks like a quick and easy solution to a complicated and difficult problem. Instead of holding hearings and creating a bill that would actually allow artists to collect from true infringers and protect expression online, the House passed the CASE Act.
But this fight is far from over. EFF will continue to stand up for fair use protections and against copyright trolls. And you can make your voices heard by telling the Senate to vote against the CASE Act.
This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2019.
Like what you're reading? Support digital freedom defense today!