[My EFF colleague Katharine is back with a very important message about a singularly stupid and dangerous legislative proposal that is steamrolling through Congress; even by the standards of stupid and dangerous Congressional copyright rules, this one is an exception -Cory]
Every year, for a couple of years now, Congress has debated passing some version of the Copyright Alternative in Small-Claims Enforcement Act (CASE Act). It’s supposed to be the answer to artists’ prayers: a quicker, cheaper way to deal with infringement than going to court. But the way this bill is written (and re-written, and re-written, and re-written) doesn’t do that. It just makes it easy to bankrupt people for sharing memes.
The CASE Act creates a small claims court for copyright claims. Sort of. The maximum amount that can be awarded is $30,000 per proceeding. And the CASE Act allows statutory damages for unregistered works, which is not permitted in courts—so you might actually end up owing more in the “small claims” framework than in a lawsuit. This might be a “small claims” framework in a legal sense, but for the almost 40% of Americans who would have trouble coming up with $400 in an emergency, it won’t feel that way.
And it’s not a court, either. What the CASE Act actually creates is a Copyright Claims Board staffed by Copyright Claims Officers in the Copyright Office. That means your case won’t be heard by a real judge (much less a jury), and many of the hard-won protections you get in court—like a growing understanding of the importance of fair use—may not apply.
So what actually will happen is that a board you’ve likely never heard of will send you a notice that there has been a claim against you. If you ignore it, you’re bound by whatever decision they make, since the CASE Act also makes appealing decisions very difficult.
You can choose to opt out, by sending an opt-out notice to the Copyright Office within 60 days of getting notice of the claim against you. Of course, that would require you to know how to do it and do it correctly, and the CASE Act contains no requirements that it be easy for regular people to opt out. The opt-out mechanism is left to the Copyright Office to create after the bill is passed.
Or you can try to defend yourself, getting a lawyer and still being forced to expend money even if you did nothing wrong.
Large-scale, repeat infringers and infringers with sufficient resources would be able to find their way out of the system. The system would also make it easy for trolls to file claims and then offer to make the claim go away for a little bit less than what going through the system would cost.
A lot of how we use the Internet is based in sharing: memes, images, words, music, whatever we want. The CASE Act could make doing those things—even when they’re perfectly legal to do—feel dangerous. It’s a bad deal all around, which is why you should take the time today to call Congress and tell them not pass this terrible bill.