NRPLUS MEMBER ARTICLE T he Internet has famously made copyright rather hard to enforce, especially for smaller businesses without the resources to pursue a federal lawsuit. After investing their time and money in creating photos, books, music, movies, and other works, these artists have little power to stop others from taking their creations without paying for them. But a bill in Congress called the CASE Act would set up an alternative system for some of these cases, giving both creators and alleged violators a far cheaper option.
Is that a good thing, or would it (heaven forbid) break the Internet?
Supporters say the bill protects against abuse while giving artists and accused infringers alike a more affordable venue in which to resolve their disputes. Opponents warn it would enable “copyright trolling” and result in $30,000 fines over Internet memes. The interest groups have lined up predictably, with the Chamber of Commerce and the Copyright Alliance in favor and the Electronic Frontier Foundation (EFF) against. So let’s take a look at the bill, which is fairly readable for something Congress came up with.
The most important thing about the new Copyright Claims Board is that it would be completely voluntary: Anyone hit with a claim before the board could simply opt out, guaranteeing that the matter would be either dropped or pursued through the federal courts instead. In other words, if you like your federal lawsuits, you can keep your federal lawsuits.
The second most important thing is that while federal copyright claims can net up to $150,000 per infringing use, this board would be limited to $15,000 per use and $30,000 overall. So if someone takes you to the Copyright Claims Board and you know you’re guilty, you probably should resolve the problem through the new system, or with your accuser directly, rather than daring him to file a full-blown lawsuit.
The cases would be heard by three “copyright claims officers” — all of whom must have seven years of legal experience, and two of whom must have experience with copyright law specifically — or as little as one officer in some cases involving less than $5,000. These judges would be instructed to decide cases the same way a federal court would; on matters of law where federal courts disagree with each other, the board would apply the law as it’s interpreted wherever the case would have been filed if it had been taken to court.
To control costs, proceedings would generally “take place by means of written submissions, hearings, and conferences carried out through Internet-based applications and other telecommunications facilities,” not in person. Litigants could represent themselves, hire an attorney, or be represented by a pro bono law student “who is qualified under applicable law governing representation by law students of parties in legal proceedings.”
As with many cost-cutting forms of “alternative dispute resolution,” the board would provide only limited appeal options. (The idea is that both sides agree to a streamlined process in exchange for keeping legal costs down, and allowing the loser to turn around and bring the case into a traditional court anyway would defeat the purpose.) A loser could ask for the case to be reconsidered; failing that, he could appeal to the register of copyrights to require the board to reconsider. Review by courts would be limited to a handful of extreme scenarios: those where “the determination was issued as a result of fraud, corruption, misrepresentation, or other misconduct,” etc.
Frankly, that sounds like how copyright claims generally should be handled. These are not typically matters that involve complicated factual disputes. The claims the board will handle will involve limited (though hardly trivial) amounts of money. And the basic issue in these claims is usually simple: Look at this copyright I own. Look at this thing on the Internet. Does the latter infringe the former, or not?
So what’s the complaint? It boils down, basically, to the idea that copyright owners could use the new board to harass innocent Internet users with dubious copyright claims and thereby extract compensation, including both judgments from the board and settlements. The response — compelling, in my humble opinion — is that the bill protects against such abuses already.
Take, for instance, the allegation of $30,000 meme fines. In order to owe $30,000 for memes, a meme maker would have to voluntarily agree to have the claim heard before this board, and the board would have to find — using the same standards applied in federal court — that the meme violated copyright law rather than being a “fair use” of the material (as memes generally are), and the board would have to award the maximum penalty over jokes on Facebook or whatever. I’m an unapologetically retrograde supporter of copyright, but for what it’s worth I’m not too worried about that one.
The more serious concern is about “copyright trolling,” which the EFF defines this way:
Copyright trolls are plaintiffs who, in the words of a U.S. Magistrate Judge, file infringement lawsuits “as a profit-making scheme rather than as a deterrent.” These suits typically involve pornography or poorly-performing independent films. They “rely on poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers.” They use “the threat of statutory damages of up to $150,000 for a single download, tough talk, and technological doublespeak . . . to intimidate even innocent defendants into settling.” Some also use the stigma of being publicly associated with pornography downloads to coerce settlements. By targeting thousands of defendants and demanding cash settlements priced below the cost of defending oneself, copyright trolls turn a significant profit with little regard for the accuracy of their claims.
The scope of this problem is staggering. Between 2014 and 2016, copyright troll lawsuits constituted just under half of all copyright cases on the federal dockets. These cases dominated the copyright dockets of judicial districts in eighteen states. Overall, since 2010, researchers have conservatively estimated the number of people targeted at over 170,000.
You can debate how big of a problem this really is. But the bill contains numerous provisions — above and beyond making all proceedings voluntary and capping damages well below what one could get in federal court — to stop the new board from playing much of a role in it.
Each case would come with a filing fee (in an amount to be set by the board) that’s nonrefundable even if the alleged infringer just opts out. Those who file bad cases could be hit with attorney’s fees and barred from using the board for a year. The board also could cap how many cases a single person can bring annually. The operations of the board would be publicized, monitored, and studied so that changes could be made if needed.
Perhaps there should be further protections against copyright trolling. Maybe those enforcing porn copyrights should just be excluded from the new process, though that would involve requiring the board to decide what counts as porn. Maybe some more anti-trolling details should be nailed down in the law rather than left to the board — a specific filing-fee amount, a specific number of allowed annual complaints.
But the bottom line is that this board would make it easier and cheaper to get an official determination on whether something violates copyright law, would be completely voluntary, and would have numerous protections against abuse even if it’s not refined any further. Most people, aside from those who don’t believe in copyright at all, should celebrate that.
Something to Consider
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