As we feared, the “Copyright Alternative in Small-Claims Enforcement Act”—the CASE Act—that we’ve been fighting in various forms for two years has been included in a "must-pass" spending bill. This new legislation means Internet users could face up to $30,000 in penalties for sharing a meme or making a video, with liability determined not by neutral judges but by biased bureaucrats.
The CASE Act is supposed to be a solution to the complicated problem of online copyright infringement. In reality, it creates a system that will harm everyday users who, unlike the big players, won’t have the time and capacity to negotiate this new bureaucracy. In essence, it creates a new “Copyright Claims Board” in the Copyright Office that will be empowered to adjudicate copyright infringement claims, unless the accused received a notice, recognizes what it means, and opts out—in a very specific manner, within a limited time period. The Board will be staffed by “claims officers,” not judges or juries. You can appeal their rulings, but only on a limited basis, so you may be stuck with whatever amount the “claims board” decides you owe. Large, well-resourced players will not be affected, as they will have the resources to track notices and simply refuse to participate. The rest of us? We’ll be on the hook.
The relief bill also included an altered version of a felony streaming bill that is, thankfully, not as destructive as it could have been. While the legislation as written is troubling, an earlier version would have been even more dangerous, targeting not only large-scale, for-profit streaming services, but everyday users as well.
We’re continuing the fight against the CASE Act, but today brings even bigger problems. Senator Thom Tillis, who authored the felony streaming legislation, launched a "discussion draft" of the so-called Digital Copyright Act. Put simply, it is a hot mess of a bill that will rewrite decades of copyright law, give the Copyright Office (hardly a neutral player) the keys to the Internet, and drastically undermine speech and innovation in the name of policing copyright infringement. Read more analysis of this catastrophic bill here.
Internet users and innovators, as well as the basic legal norms that have supported online expression for decades, are under attack. With your help, we will be continuing to fight back, as we have for thirty years, into 2021 and beyond. Fair use has a posse, and we hope you’ll join it.