Congress Moving Forward With Copyright-For-Censorship 'Small Claims' Act

from the this-is-a-bad-idea dept

For a while now, we’ve been explaining why a plan to create a copyright “small claims” process would be a disaster for free speech and a boon to copyright trolling. Unfortunately, it appears that the latest bill proposing this awful idea has a real chance to move forward. EFF has put up an action page urging people to contact their elected officials and ask them not to approve the CASE Act.

As EFF’s Ernest Falcon details in the latest blog post there are so many reasons why this is a bad idea. Despite all the claims that this is just about “small claims” and therefore can’t be used for trolling/shakedowns, this shows just how insanely out of touch lawmakers are with most Americans. A $15,000 award would bankrupt plenty of people:

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.


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.

I cut out the paragraph in the middle because there’s a separate point around that. It explains how this new act would remove the current requirement that a work be registered with the Copyright Office before the copyright holder could sue. This would open up a vast trove of potential infringements. And just think of all the copyright trolling operations that will swoop in and promise anyone posting random photos to social media that they can go out and collect “free money” for them:

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.

Related to this is how much more massively this bill will allow censorship-by-copyright. This is already a problem under the notice-and-takedown system of the DMCA’s Section 512. But the CASE Act will make this much, much worse:

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.

And that doesn’t even get into the due process concerns:

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.

There are so many problems with this legislation it’s truly disturbing that it appears to have some momentum. The idea that anyone adequately informed on the state of copyright law today can look at it and think there’s too little litigation is preposterous. But, that’s where we are.

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Comments on “Congress Moving Forward With Copyright-For-Censorship 'Small Claims' Act”

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Mason Wheeler (profile) says:

As I’ve said before, when a weed grows in your garden, you have two ways to deal with it. The easy way is to cut it off above ground. Unfortunately, that doesn’t work particularly well, because it will just grow back, over and over and over again. The right way is to uproot it. With the roots removed, there’s nothing there for the weed to grow back from, and you’re finally free of it.

The root of digital copyright abuse is the DMCA. It enshrines the principles of DRM and extrajudicial takedowns, both of which are legal abominations that fly in the face of the entire tradition of Western jurisprudence, in law, and every bad copyright act we’ve seen since then has built upon the foundation established by the DMCA.

Just look at this act. It takes the horrible doctrines of the DMCA and makes them even worse, making the already-bad process of DMCA takedowns even harder to defend against.

We can fight against this act… or we can do it right. Pull it up by the roots and repeal the DMCA. You can’t make the DMCA takedown process worse if there is no DMCA takedown process to make worse. Sooner or later, that’s what we will have to do if we’re ever going to have peace and security in our digital lives. And the sooner we get around to it, the better.

Heinrich Balderschwang says:

Re: Small claims court because low value to the works, right?

Just look at this act. It takes the horrible doctrines of the DMCA and makes them even worse, making the already-bad process of DMCA takedowns even harder to defend against.

No, it adjusts process to what is DUE according the value of the works.

You pirates always say that individual copyright infringement is no harm — which is lying: actually there’s obviously a small lost profit each, it’s not zero.

Therefore a low-cost court is needed.

This. Is. Appropriate. DUE. Process.


Peter (profile) says:

Re: DMCA: Internet in the early 90ies vs Internet now

30 years back, a case could be made for draconian measures against uploaders – since typically only very few copies of music or video were uploaded by screeners or production company insiders. At least from a rightsholders perspective, high damages and a low burden of proof could be justified.

Nowadays, the situation has changed: Typical "uploaders" are people using the .torrent protocol. Thousands, even millions, of copies may have been downloaded already, and typical upload ratios are 1:1 or 2:1. If someone downloads an .mp3-file with a retail value of 50 cents, they might at the same time upload two copies, causing a total loss of $1.50 revenue.

In the worst case – assuming that three people would actually have purchased the file. The damage to the rightsholder is somewhere between $0 and a fraction of $1.50 – no taxes will be paid on the downloaded copies, no distribution costs, and no revenue sharing with other stakeholders.

Which raises the question – how does congress get from a fraction of $1.50 to a default payment of 7500 dollars to the rightsholders?

To put the numbers in perspektive: Apple and a bunch of ebook publishers stole about 1 billion dollars from their customers in a price fixing cartel.

Can we expect the same multiplier to be used for calculating punitive damages – and a payout of 5 Trillion dollars to the cheated customers?

As for music publishers – they collected 500 Million canadian dollars on behalf of artists – and pocketed it themselves. Will those publishers have to pay out 2.5 Trillion Dollars (canadian) to the artists?

That One Guy (profile) says:

'What problem, I'VE never been sued...'

The idea that anyone adequately informed on the state of copyright law today can look at it and think there’s too little litigation is preposterous.

Based upon past articles I think that’s the source of the problem, in that the kind of politician pushing for garbage like this aren’t informed and as a result don’t think that copyright trolling exists as a widespread problem, and that any stories about people abusing the system for personal gain are just anomalous outliers, if not flat out entirely bogus.

They don’t have to worry about facing down thousand dollar fines based on accusation with nary a need for the accuser to prove any harm, and if they or someone working for them ‘slips up’ and infringes unlike anyone else they get a ‘no harm, no foul’ pass, so of course it’s not a problem.

That Anonymous Coward (profile) says:

Oh those pesky courts are making things hard for our film making buddies, lets gut all of those protections.

Someone might want to mention to those in Congress pushing this that the biggest beneficiaries is porn makers.
Do they support pornography?
Do they support women being exploited?

How many of these questions until they cave?
Its one thing to get a fat donation from hollywood, it is another to face their boomer voters who think porn is the same as rape.

Heinrich Balderschwang says:

Key point: "any Internet user who uploads a copyrighted work".

Right off, I see an EASY way to avoid this. Can you guess what it is, kids? C’mon, it’s OBVIOUS.

But no, you’re so fixated on needing entertainments for free that you’ll never figure out how to avoid it.

But I suppose enough $5000 examples will convince even Techdirt fanboys.

Enjoy. Told this was coming (more too!), but Masnick here writes as though it comes like a bolt from out of the blue!

Stephen T. Stone (profile) says:


Question: How should CinemaSins be dealt with since the guy behind that uploads copyrighted material (albeit with commentary attached) to YouTube?

Or is criticism no longer “free speech” the moment it comes into contact with even a single nanosecond of the copyrighted work it criticizes?

Remember: You can’t disapprove of corporate censorship and approve of a copyright-as-censorship scheme simultaneously.

Rocky says:

Re: Key point: "what due process?!?".

As usual your reading comprehension and memory fails you, or perhaps it’s just that you love lying and misrepresent things.

You do know that the subject of the small claims copyright act has been up for debate earlier here at TD, right? The links are included in the post which means you really didn’t read it, as usual.

And you just love giving all the power to corporations, or perhaps you are so blinded by hate you can’t see the truth of your own arguments. Either way, your own words condemns you as a vile corporatist that thinks dismantling democracy and free speech is a good thing because damn the collateral damage, as long as a "pirate" somewhere gets squeezed it’s all good.

Anonymous Coward says:

Re: Re: Key point: "what due process?!?".

I’d be willing to bet a penny (if I could be bothered to get one), that the only pirates this bill (if enacted) will hurt will not be due to them illigaly downloading content.

It will probably only be crazy stuff… like a comment they wrote as an AC on a website

PaulT (profile) says:

Re: Re: Re:

That’s exactly why that campaign was so dumb. If cars were infinitely reproducible, able to be used without affecting others on the road and without depriving the original owner of anything, you’re damn right people would download cars. The fact that this seems like a remotely decent argument just shows the person making it doesn’t understand reality.

Anonymous Coward says:

Re: Re:

"You wouldn’t download a car."

Not yet, I wouldn’t. The smallest printer I suspect would let me actualize the download as a physical car, the Imprimere AG BIG 3D-Printer 2156, has a base price of the of €1,757,000. It’s available for hourly rental, but I suspect the costs would still be higher than simply buying a car, and I doubt the companies that own and rent the 2156 would let me print a downloaded car (presuming they recognize the copyright infringement).

As 3D print tech expands and matures, rates will fall, and copyright mores will relax.

Anonymous Coward says:

Re: Re: Re:

Lol, I didn’t think I’d need to explain it.

The whole point of the comment was to illustrate that a "small claim" for copyright infringement of a work (that is, a song), is as high as buying a new car. Or half of it.

In short, that you’d get smaller claims for stealing something than for downloading a song.

I illustrated it with the infamously dumb campaign about downloading a car.

And yes, I’d download one too.

Anonymous Coward says:

Re: Re:

It would be simple if everyone could be familiar with every work ever produced. It is far from easy when people can generate a work similar to something that went before. Taking as one example, there are a limited number of note sequences that work as music, and lot of people will find the same sequence because it sounds pleasing to their ears. Some lawyers are going to use that to make themselves rich.

That One Guy (profile) says:

Re: Re: Yes the arm was removed, but no more paper cut, so win-win!

It would be simple if everyone could be familiar with every work ever produced

It’s actually really easy, assuming you’re willing to throw culture and creativity under the bus and run both over a few times for good measure. You simply need to act as though anything you didn’t personally create that wasn’t based upon something else is off limits, and just like that you’ve reduced(not eliminated mind, merely reduced) the chance for infringement.

Now sure, this would cause the death and/or stagnation of cultural growth and creativity, both of which depend on remixing what came before to create the new branch for the next instance of creativity and cultural growth, but isn’t killing both of those a small price to pay if it means slightly reducing the chance for the dreaded Copyright Infringement, Destroyer of Worlds to rear it’s ugly head?

Ganja Man says:

This is a really stupid bill

It’s totally voluntary, so any defendant can just opt out of it and the case goes to district court. It’s a big waste of time.

At a more fundamental level, making small claims copyright claims easier to file is a disaster for many industries, like entertainment. For example, right now there are 80-90 potential claims against Marvel based on crackpots who claim that one or more characters in Avengers:Endgame was derived from their work. Right now those are just letters from the crackpots, and maybe one or two of them will actually file suit against the parent company. If that.

This is because having to actually hire a lawyer (who tells you the case is bogus), or having to go through the expense of filing in federal court, acts as gravity to bring the crackpots down to earth, such that only the less frivolous ones get filed. But with a procedure like this, you give basically every crackpot, every crank with nothing better to do, an easy way to "make a federal case" out of their whimsical copyright claims. Expect a flood of bogus suits by crackpots looking to shake down small settlements with questionable claims.

Cheap and easy ways to file infringement suits, for the general populace, is not a good idea.

Anonymous Coward says:

Some one takes a photo ,someone else puts a comment on it ,thats a meme .This law makes most meme ,s illegal ,how many people get permission from the creator before using an image ,
So someone in congress thinks there is not enough lawsuits over
copyright in the us courts .this law will have a chilling effect on free speech and fair use .
i see many newspapers that use images from instagram and twitter
especially images of celebritys and famous people .
Do they have permission to use these images .

Update your windows with Truth. says:

Yup, fanboys above assert will be falsely accused though guilty!

The pirates here used to brag of how many gigabytes uploaded, but as the administrative laws that I predicted are put in place, are down to shrieking that they’re the victims!

And though actually guilty, they insist that any accusation is false.

Techdirt is literally founded on inability to grasp copyright law, from Napster to now.

After 20 years, it’s clear that Masnick / Techdirt / fanboys aren’t just refusing to learn, but actually unable!

It’s very simple, kids: If don’t make it, you’ve no right to view / share / up or download. Period.

Stephen T. Stone (profile) says:


they insist that any accusation is false

No, what we insist upon is the following principle: An accusation alone does not determine guilt.

After 20 years, it’s clear that Masnick / Techdirt / fanboys aren’t just refusing to learn, but actually unable!

…says the guy who refuses to not only learn from his mistakes, but keeps making the same mistakes over and over and over and over again so he can play the angry contrarian copyright maximalist who lacks either the intelligence or the courage to answer one simple question (e.g., my First Word-ed comment on this article).

If don’t make it, you’ve no right to view / share / up or download.

Again, see my First Word-ed comment on this article. But additionally: We didn’t make most of the content in the American public domain, so how come we have the absolute legal right to download and share and view, say, the original Night of the Living Dead?

Anonymous Coward says:

Re: Re: Re:

After 20 years, it’s clear that Masnick / Techdirt / fanboys aren’t just refusing to learn, but actually unable!

I definetely have not been visiting TD for 20 years. However one of the reasons I came back to TD (after being linked to a specific article) was the fact that the article (sadly I no longer rememeber which one), and the subsequent aritles I read, were written with logical arguments, and sources were usually copious.

AKA it was not just someone spouting opinion with zero evidence or rational thought behind it.

And the fact that some people in the comment section tend to do the same make it a pretty good site, in my opinion.

However I guess if you hate crittical thinking, and finding other people engaging in reasoning instead of blind submission to be a hinderance, then yeah I can see disliking TD.

Anonymous Coward says:

I’m guessing that if this bill passes the we can also see the politicians involved finally being taught how this will play out. If I was an american, I’d make sure that they would be amongst the first to get a taste. Anything they put online would be claimed as my copyright. After all, there’s no need to prove my claim is there!

That One Guy (profile) says:

Re: 'All animals are equal, some animals however are more equal.'

Nice idea, but you can be damn sure that any claims made against a politician would get extra scrutiny, if not tossed from the get-go, and unlike every other case of bogus claims those might actually get a real penalty for being filed. Can’t go letting the peasants sue the nobility after all.

tom (profile) says:

This should be renamed the "Let’s Litigate Over Creation Time Act". By removing the registration requirement for lawsuits, there will be no easy way to determine who published first and therefore who is most likely infringing on the other. Since computer file dates are fairly easy to alter, can’t rely on those. Someone can claim they created a work on such and such a date but didn’t distribute it until much later. And not all works are created on things that leave a file date mark. Typewriters, pens and art brushes tend to not leave date created on records. The last thing we need are more "prior work" lawsuits and the resultant discovery motions.

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