A dedicated group of attorneys and technologists from around the U.S. defend Internet users against abuse by copyright trolls. Today, they wrote to the House Judiciary Committee with a warning about the CASE Act, a bill that would create a powerful new “small claims” tribunal at the U.S. Copyright Office in Washington D.C. The CASE Act would give copyright trolls a faster, cheaper way of coercing Internet users to fork over cash “settlements,” bypassing the safeguards against abuse that federal judges have labored to create.
Copyright trolls are companies that turn threats of copyright litigation into profit by accusing Internet users of infringement—typically of pornographic films or independent films that flopped at the box office. Wielding boilerplate legal papers, dubious investigators, and the threat of massive, unpredictable copyright damages, these companies try to coerce Internet users into paying “settlements” of several thousand dollars to avoid litigation. Because their business is built around litigation threats, not the creative work itself, copyright trolls aren’t very careful about making sure the people they accuse actually infringed a copyright. In fact, since profitable copyright trolling depends on targeting thousands of Internet users, trolls have an incentive not to investigate their claims carefully before filing suit.
Trolling is a massive problem. Between 2014 and 2016, copyright troll lawsuits constituted just under 50% of all copyright cases on the federal dockets. Overall, since 2010, researchers have estimated the number of Internet users targeted at over 170,000 - and that’s probably a low estimate.
These schemes have a human cost. Targets have included many elderly retirees who don’t use the Internet, who are often coerced into paying settlements. Others are documented immigrants with a green card or work visa, who must pay to avoid litigation that could imperil their immigration status.
Still others are homeowners, apartment managers, and leaseholders—whoever’s name is on the ISP bill. Copyright trolls force them to choose between paying a cash settlement or becoming part of the shakedown by interrogating their tenants, family members, roommates, or houseguests about their Internet use, despite having no legal responsibility to police that use.
The federal courts have cracked down on copyright trolling, by requiring copyright holders to present solid evidence of infringement before the courts will issue a subpoena to unmask an anonymous Internet user. Some courts have even begun to review settlement demand letters to ensure that they don’t use abusive methods.
The CASE Act, H.R. 3945, would reverse this progress by giving copyright trolls a whole new, and more favorable, legal forum. In particular, the bill would
- allow the Copyright Office to issue subpoenas for the identity of an Internet user, who can then be targeted for harassment and threats;
- do away with the requirement that copyright holders register their works before infringement begins in order to recover automatic statutory damages, which weeds out frivolous claims;
- allow the Copyright Office to issue $5,000 copyright “parking tickets” through a truncated process, with no true right of appeal.
The opponents of copyright trolling who signed the letter are concerned about giving the Copyright Office these powers, bypassing the federal courts. Given that the Copyright Office calls rightsholders its “customers,” and often favors rightsholders’ interests over those of the broader public, we don’t trust a Copyright Office panel to give careful protection to the accused.
The House is considering a few copyright bills this spring. This week, it voted to approve three of them: the Music Modernization Act, the CLASSICS Act, and the AMP Act. Wisely, they left the CASE Act off the schedule—perhaps because of its controversial provisions—but the bill could still come up for a vote.
The CASE Act is supported by photographers who want a faster, cheaper way to bring infringement claims. But creating a new federal administrative tribunal with the power to issue fines against ordinary Internet users is dangerous. Aid to photographers can’t come at the expense of inviting more copyright troll abuse. Legislators should heed the words of professionals who defend the public against this form of abuse. They should reject the CASE Act.