The Copyright Alternative in Small-Claims Enforcement Act (CASE Act) is one of those (mostly) bad ideas that just won’t go away. It feels like a simple and easy solution to a thorny problem in copyright law: streamlining the dispute process. But as often happens, this solution is neither simple nor easy.
The U.S. House of Representatives’ Committee on the Judiciary followed its counterpart in the Senate by passing the CASE Act out of committee. This means that the whole House could vote to pass it, without bothering to fix any of its many flaws.
That would be a profound mistake.
The CASE Act’s goal is to make it simple and fast for copyright holders to get paid for infringement claims. The method it employs is to create a quasi-judicial body in the Copyright Office called the “Copyright Claims Board,” which would be able to award damages as high as $30,000 per proceeding, while also strictly limiting the ability of parties to appeal the decisions. $30,000 judgments issued by people who are not judges but rather officers of the Copyright Office, who see copyright holders—not the general public—as their customers, are not “small claims”. These are judgments that could ruin the lives of regular people; people who are engaging in the things we all do when we’re online: sharing memes, sharing videos, and downloading images.
During the mark up hearing, we once again heard the CASE Act described as a “voluntary” small claims system.
The CASE Act is not as “voluntary” as its boosters say it is. It cannot be emphasized enough how inadequate an “opt-out” system is. The way the CASE Act is currently structured, the Copyright Office sends a notice about the complaint to someone along with information about how to opt out. If they don’t opt out within 60 days of the notice—in whatever way the Copyright Office decides is the proper way to opt out—then the person is bound to whatever decision is made by the Claims Board, even if they don’t respond at all or don’t show up.
This is hardly a clear and easy process, particularly since it will come from a board most regular people have never heard of. Companies and people who have lawyers will know if they should to opt out. But the average Internet user will not, which means they will risk facing a huge judgment, potentially without ever having presented their side of the story.
Instead of a friendly and “voluntary” dispute system, CASE will create a new procedure for copyright trolls. Copyright trolls don’t make money through creating art, but through litigation and legal threats that target infringers and non-infringers alike. Courts have been reining in this activity, but the Copyright Claims Board will have none of the protections that those courts have established. Thus, CASE creates a quick and cheap way to collect on a large number of claims, without the review they might receive in a real court. And, given the amounts the CASE Act empowers the Claims Board toward, it will also make it easy for trolls to file a claim and then simply tell their targets to settle for what is still a significant amount, but less ruinous than the worst-case scenario of going through the full CASE Act process.
All of these problems don’t even include another huge flaw in the CASE Act: its new dispute system has to pass Constitutional muster. First, it’s not clear that Congress can just assign some copyright disputes to an administrative tribunal—particularly given that they may implicate fundamental speech concerns. Second, the proposed “opt-out” process is not just unfair—it’s potentially a violation of your constitutional right to due process.
There are just too many problems with the CASE Act for it to be a viable solution to the problem it’s supposed to solve. Tell your representatives to vote “no” on the CASE Act.