September 22, 2016 | By Elliot Harmon

Copyright Loophole Could Undermine Important Consumer Protection Bill

The Consumer Review Fairness Act Is a Noble Bill but Could Leave the Door Open for Copyright Abuse

There’s a bill making its way through Congress that would protect consumers’ freedom of speech by limiting unfair form contracts. The Consumer Review Fairness Act (H.R. 5111), introduced by Leonard Lance (R-NJ) and cosponsored by several representatives, would address two shameful practices: contracts that bar customers from sharing negative reviews of products and services online, and contracts that attempt to assign the copyright in customers’ reviews to the businesses themselves (who then file copyright takedown notices to have negative reviews removed). The CRFA is an important bill, and it addresses a major problem, but it contains one loophole that could undermine its ability to protect people who write online reviews.

An earlier version of the bill was introduced in both houses of Congress last year under the name Consumer Review Freedom Act (S. 2044, H.R. 2110). EFF applauded the bill when it was introduced. As we argued then, when a customer has no reasonable opportunity to negotiate a contract and its terms are overwhelmingly stacked against the customer, the contract shouldn’t be enforceable. We noted that these contracts usually fail in court, but that that hasn’t stopped businesses from using them. We also pointed out a few problems with the CRFA. Most of them have been addressed in the new bill, but the most disconcerting one remains.

If a company claims that a review is not “otherwise lawful” (for example, because it allegedly defames the company), then the law may permit the company to claim that it owns the copyright in the review and have it removed as copyright infringement, thus creating a shortcut for having speech removed. We don’t think this is what Congress intended, and we hope it’s not too late to remove the two offending words.

Imagine that I’m a vendor offering you a contract for a service. My contract includes a clause saying that you assign me the copyright in any review you write of my service. Under the CRFA, that clause would be invalid and my including it in the contract would be against the law. But if my contract says you assign me the copyright in any unlawful review you write, I could argue that that contract is valid under the CRFA.

We’re concerned that businesses could effectively use this language to bypass the traditional protections for allegedly illegal speech and instead rely on the censorship tools available to copyright owners. Filing a DMCA takedown notice is both easier and faster than convincing a judge that a piece of online speech is defamatory, especially because sending a DMCA takedown doesn’t require you to prove anything. A business could claim to be the copyright owner and get a review taken down without ever testing its claims in court.

Furthermore, transforming a different possible speech violation into a copyright infringement case brings the possibility of astronomical statutory damages, penalties with no relation to any actual harm done by the alleged infringer. Lawmakers should think twice before opening a loophole that businesses could use to masquerade other speech complaints as copyright infringement complaints.

We wholeheartedly support the CRFA’s intentions. Anti-review contracts are an attack on customers’ freedom of speech and it’s gratifying to see lawmakers stand up to defend consumers. We hope that before the CRFA becomes law, Congress closes the dangerous loophole.


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