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DEEPLINKS BLOG

Consumer Review Freedom Act Ready for Senate—Still a Good Law with a Few Problems

November 23, 2015

We wrote earlier this month about the Consumer Review Freedom Act (S. 2044, H.R. 2110), a bill that would prohibit businesses from using form contracts to prevent their customers from sharing negative reviews of their products and services online, or using bogus copyright claims to censor reviews they don’t like. We also joined a group of peer organizations in signing a letter in support of the bill.

Last week, the Senate Commerce Committee approved an amended version of the bill, readying it for debate on the Senate floor. We applaud the committee for making customers’ freedom of speech a priority. Chairman John Thune (R-SD) is the bill’s primary sponsor in the Senate.

Last time we wrote about the bill, we noted two changes we’d like to see to it before it passes.

First, we were worried about a carveout that would allow a business to use a contract to assign the copyright for a customer’s speech to the business itself when that speech is not “lawful.” We think that this loophole could allow businesses to bypass the traditional protections in place for allegedly unlawful speech. For example, it’s easier and faster to send a copyright takedown notice to the offending user than to convince a judge to order the user to remove content for defamation. Unfortunately, the version the Commerce Committee approved still includes this loophole.

Second, we were concerned that the law could be used to prosecute not only the businesses that offer these unfair contracts, but also the customers who enter into them. The committee did edit the definition of “form contract” to make it clear that the contracts the law addresses are those that establish a business-customer relationship, but we still fear that the law could be used against customers.

The new version also clarifies that nonexclusive licenses to use content aren’t covered under the ban on contracts that transfer the customer’s copyright. That’s a good move: nearly all online forums and social media platforms require users to grant the platform a nonexclusive license to use their content. Calling those agreements into question clearly isn’t the intention of this bill.

Once again, we’re glad that the Senate is moving forward with the CRFA. It’s not a perfect solution, but it’s great to see Congress addressing the problem of unfair, lopsided form contracts.

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