The Senate Judiciary Committee intends to vote on the CASE Act, legislation that would create a brand new quasi-court for copyright infringement claims. We have expressed numerous concerns with the legislation, and serious problems inherent with the bill have not been remedied by Congress before moving it forward. In short, the bill would supercharge a “copyright troll” industry dedicated to filing as many “small claims” on as many Internet users as possible in order to make money through the bill’s statutory damages provisions. Every single person who uses the Internet and regularly interacts with copyrighted works (that’s everyone) should contact their Senators to oppose this bill.
Easy $5,000 Copyright Infringement Tickets Won’t Fix Copyright Law
Making it so easy to sue Internet users for allegedly infringing a copyrighted work that an infringement claim comes to resemble a traffic ticket is a terrible idea. This bill creates a situation where Internet users could easily be on the hook for multiple $5,000 copyright infringement judgments without many of the traditional legal safeguards or rights of appeal our justice system provides.
The legislation would allow the Copyright Office to create a “determination” process for claims seeking up to $5,000 in damages:
Regulations For Smaller Claims.—The Register of Copyrights shall establish regulations to provide for the consideration and determination, by at least one Copyright Claims Officer, of any claim under this chapter in which total damages sought do not exceed $5,000 (exclusive of attorneys’ fees and costs). A determination issued under this subsection shall have the same effect as a determination issued by the entire Copyright Claims Board.
This could be read as permission for the Copyright Office to dispense with even the meager procedural protections provided elsewhere in the bill when a rightsholder asks for $5000 or less. In essence, what this means is any Internet user who uploads a copyrighted work could find themselves subject to a largely unappealable $5,000 penalty without anything resembling a trial or evidentiary hearing. Ever share a meme, share a photo that isn’t yours, or download a photo you didn’t create? Under this legislation, you could easily find yourself stuck with a $5,000 judgment debt following the most trivial nod towards due process.
Every Internet User Could Face Life-Altering Money Judgments Thanks to Statutory Damages
Proponents of the legislation argue that the bill’s cap on statutory damages in a new “small claims” tribunal will protect accused infringers. But the limits imposed by the CASE Act of $15,000 per work are far higher than the damages caps in most state small claims courts—and they don’t require any proof of harm or illicit profit. The Register of Copyrights would be free to raise that cap at any time. And the CASE Act would also remove a vital rule that protects Internet users – the registration precondition on statutory damages.
Today, someone who is going to sue a person for copyright infringement has to register their work with the Copyright Office before the infringement began, or within three months of first publication, in order to be entitled to statutory damages. Without a timely registration, violating someone’s copyright would only put an infringer on the hook for what the violation actually cost the copyright holder (called “actual damages”), or the infringer’s profits. This is a key protection for the public because copyright is ubiquitous: it automatically covers nearly every creative work from the moment it’s set down in tangible form. But not every scribble, snapshot, or notepad is eligible for statutory damages—only the ones that U.S. authors make a small effort to protect up front by filing for registration. But if Congress passes this bill, the timely registration requirement will no longer be a requirement for no-proof statutory damages of up to $7,500 per work. In other words, nearly every photo, video, or bit of text on the Internet can suddenly carry a $7,500 price tag if uploaded, downloaded, or shared even if the actual harm from that copying is nil.
For many Americans, where the median income is $57,652 per year, this $7,500 price tag for what has become regular Internet behavior would result in life-altering lawsuits from copyright trolls that will exploit this new law. That is what happens when you eliminate the processes that tend to ensure only a truly motivated copyright holder can obtain statutory damages.
Censorship of Speech Will Become More Pervasive Under this Legislation
Another major problem with the CASE Act is how it transforms a Digital Millennium Copyright Act (DMCA) Notice into a long-term censorship tool. Under current law, if a copyright holder submits a takedown notice to an online platform alleging that your post infringed their copyright, you have a right to file a counter-notice if you disagree. There are many times when false takedown claims occur on the Internet and perfectly lawful speech is suppressed, and counter-notices are an important, though flawed, check on abuse. But the CASE Act would allow a party that filed a takedown notice to also bring a claim with the new “small claims” tribunal. When they do so, the Internet platform doesn’t have to honor the counter-notice by putting the posted material back online within 14 days. Already, some of the worst abuses of the DMCA occur with time-sensitive material, as even a false infringement notice can effectively censor that material for up to two weeks during a newsworthy event, for example. The CASE Act would allow unscrupulous filers to extend that period by months, for a small filing fee.
If all these outcomes sound terrible to you and you want to send a clear message to Congress not to move forward, then you need to contact your Senators right away to tell them you oppose the CASE Act (S. 1273) and want them to oppose it on your behalf.