The CASE Act: The Road To Copyright Trolling Is Paved With Good Intentions

from the this-will-be-bad dept

We’ve written a few times in the past about the serious problems with the CASE Act, a bill that will create a thriving industry of copyright trolling and shakedowns. On Thursday, the Senate Judiciary Committee passed the CASE Act out of Committee, meaning that it could go to the floor for a full vote. Stan Adams, from CDT, has written a detailed, and thoughtful critique, noting that even if there are good intentions behind the CASE Act, it has many, many problems. We’re reposting it here, under CDT’s CC-BY license.

Sometimes ideas based in good intentions are so poorly thought out that they would actually make things worse. This seems to be especially prevalent in the copyright world of late (I’m looking at you, Articles 15 and 17 of the EU Copyright Directive), but the most recent example is the Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act). This bill intends to give photographers and small businesses a more streamlined way to enforce their rights with respect to online infringements by reducing the costs and formalities associated with bringing infringement claims in federal court. Pursuing infringement claims can be expensive and time-consuming, so this may sound like a good thing, especially for rightsholders with limited resources. It is not.

The CASE Act would establish a quasi-judicial body within the Copyright Office (part of the legislative branch) empowered to hear a limited set of claims, make “determinations” about whether those claims are valid, and assign “limited” damages. The bill structures the process so that it is “voluntary” and lowers the barriers to filing claims so that plaintiffs can more easily defend their rights. Without the “quotes”, this description might sound like a reasonable approach, but that’s because we haven’t talked about the details. Let’s start at the top.

The bill would establish a Copyright Claims Board (CCB) in the Copyright Office. This would not be a court and would be entirely separated from the court system. The only option to appeal any of the CCB’s determinations, based on the CCB’s legal interpretation, would be to ask the Register of Copyrights to review the decision. It would be theoretically possible to ask a federal court to review the determination, but only on the grounds that the CCB’s determination was “issued as a result of fraud, corruption, misrepresentation, or other misconduct” or if the CCB exceeded its authority. So if you disagree with the CCB’s legal interpretation, or even its competence to make a decision, you are out of luck. This raises red flags about potential due process and separation of powers problems under the Constitution.

The “small claims” part of the bill is also troubling, in that the CCB can award damages up to $30,000 per proceeding. This amount is only considered small in the context of copyright statutory damages, which range between $750-30,000 per work infringed, unless the infringement was willful, in which case, damages can be $150,000 per work. The $30K cap is a 2x-10x multiple of the maximum awards for small claims courts in 49 of 50 states. (Side note: what’s going on, Tennessee?) So losing a single small-claims action before the CCB could be a financial disaster for many people, potentially for nothing more than uploading a few pictures to your blog.

You may be thinking, “I won’t infringe copyright, I’ll just make sure not to use any protected works.” Here’s why that will not be as easy as you might think. First, copyright is automatic. This means that when someone snaps a new photo, they immediately hold the rights to it. If you found a photo or other work that you wanted to use, you would need to get permission from the rightsholder. In some cases, determining who to ask is relatively easy. You may know the photographer or there may be clues indicating who likely owns the rights, such as watermarks or attribution information (photo courtesy of x). However, the only sure way to identify the rightsholder for any given work is to check with the Copyright Office to see who registered the work.

Even though the Supreme Court recently ruled that the registration process must be completed (either the Copyright Office granted or denied the application for registration) before filing infringement claims, registration is not required to bring an action under the CASE Act. This leaves everyone (other than the original author/photographer) with no guaranteed way to determine who holds the rights to unregistered works. Even if you identified someone as a potential rightsholder, it could be difficult or impossible to verify their claim of ownership without the official recognition by the Copyright Office. So even if you are acting in good faith and attempt to obtain permission before using a work, you may not be able to do so and there is no guarantee that you will have obtained permission from the correct party, leaving you exposed to claims via the CASE Act.

For example, you see an image (perhaps a vacation photo) on a friend’s social media page and ask their permission to share it with your network. They agree and you share, not realizing that your friend copied that image from somewhere else, perhaps a travel company website. Your friend did not have the rights to that photo, and you made and distributed an unauthorized copy, exposing you to the possibility of an infringement claim from the actual photographer. Sharing that single photo could cost you $7500.

So, to recap, it may be impossible to obtain the correct permissions to use a work, and using a work with or without permission (relying on the fair use doctrine) may leave you exposed to claims up to $30,000, which will be determined by a panel of non-judges, whose decision you will have almost no way to appeal. Once their decision is final, you are also barred from relitigating your loss in federal court (unless you can prove fraud, etc). You may remember that this process is “voluntary.” Let’s talk about what that means in reality.

The process created in the CASE Act allows defendants to opt-out of the process. Specifically, defendants are given 60 days from when they are notified of the claim to tell the CCB that they do not wish to be subject to the procedure. (This is how the bill’s drafters hope to skirt around all the constitutional issues?by getting people to voluntarily give up their due process rights and willingly accept the legal determinations of a non-judicial body.) So it’s easy, right? Simply opt-out.

Yes, for many would-be defendants, especially the more legally sophisticated ones like large internet companies, opting out of each claim brought against them is not likely to be difficult, even if it is time and resource intensive. However, think about what you might do if you received an envelope claiming to be from a governmental body you have never heard of and asserting that you are potentially liable for infringing copyright. Many would simply ignore it or simply not understand the significance or the potential consequences. Others might perceive this notification as a form of phishing or a potential scam. 60 days elapse and you are now subject to the determinations of the CCB. The next letter you receive may be correspondence from a law firm (on behalf of the claimant) offering you a settlement deal that lets you buy your way out of the legal fight and the possibility of a $30,000 liability. Now what should you do: settle or try to defend yourself at the risk of a higher liability amount?

This litigation model is often called “trolling” and the CASE Act sets up a process that serves that model well. Sure, the process is voluntary, which means that only the least legally savvy people will be defendants. Yes, the statutory damages are reduced (compared to those available through federal courts), but they are still plenty high enough to push defendants toward settlement, especially given the limited options for appeal.

Despite its good intentions, the CASE Act is a legal disaster waiting to happen.

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Comments on “The CASE Act: The Road To Copyright Trolling Is Paved With Good Intentions”

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64 Comments
That One Guy (profile) says:

A forest fire is downright cold... compared to the sun anyway

The "small claims" part of the bill is also troubling, in that the CCB can award damages up to $30,000 per proceeding. This amount is only considered small in the context of copyright statutory damages, which range between $750-30,000 per work infringed, unless the infringement was willful, in which case, damages can be $150,000 per work.

Just… let that sink in. Copyright fines are so utterly insane that a cap of thirty thousand dollars is considered to still meet the definition of ‘small claims’, simply because the ‘regular’ fines have the potential to be even worse.

That it how utterly insane copyright law can be and is, in that a proposal for absolutely ruinous fines for an act that in almost any instance causes no demonstrable damage, handed out by ‘court’ almost entirely separate from the already established legal system is not only not being laughed out of the political arena but is actually getting support within it.

As insane as copyright law already is it seems there is always someone who will try to make it worse.

That One Guy (profile) says:

Re: Re: A forest fire is downright cold... compared to the sun a

actually artists are human beings

You don’t say, I always thought they were lizard people…

and when their businesses are destroyed by copyright infringement

Gonna need a hefty [Citation Needed] there…

believe it or not it is actually damaging

It can be damaging or beneficial, but damaging to the tune thousands or tens of thousands per instance? Not even close. A single copy of a song, movie or picture does not magically become worth the same as a car(or even house on the upper range) simply because someone didn’t pay for it, so to have penalties reaching that level is simply absurd.

PaulT (profile) says:

Re: Re: Re: A forest fire is downright cold... compared to the s

Exactly. Meanwhile, the same record labels are whining that the money they earn from legal sources won’t pay the bills. A 99c iTunes download or the revenue from a Spotify stream is insultingly low to them, but if someone downloads illegally it’s worth at least $750? You have to have had some special kind of brainwashing to believe both.

me says:

Re: Re: Re: A forest fire is downright cold... compared to the s

well you think that because you don’t understand why the damages are so high

I’ll tell you but you still won’t understand it but others might so here goes

if the awarded damages were low the culture would be to just steal and pay only when caught

and yes loss can be beneficial, like if you got brain tumor, it could actually be a blessing in disguise…

That One Guy (profile) says:

Re: Re: Re:2 Crime: Stealing a physical CD. Penalty: $20,000.

Which of course is why actual theft in the form of shoplifting routinely carries four or five digit fines, because if people didn’t have to worry about fines thousands of times higher than the cost of items in a store people would just be carrying everything they could out.

Seriously, the only thing funnier than your explanation is your downright laughable attempt to act condescending and ‘smart’ giving it.

Anonymous Coward says:

Re: Re: A forest fire is downright cold... compared to the sun a

"actually artists are human beings and when their businesses are destroyed by copyright infringement – believe it or not it is actually damaging"

What about the artists whose business is destroyed by false claims of copyright infringement? Are they human beings also? Believe it or not, it is actually damaging.

Anonymous Coward says:

Re: Re: Re:2 A forest fire is downright cold... compared to t

"false claims don’t go to court…because they’re false"

Are you acting ignorant for the lolz or are you seriously trying to push this bullshit? There are cases of plaintiffs asking innocent people for money based upon false information or completely made up info. But these things never happen right?

Anonymous Coward says:

Re: Re: Re:3 A forest fire is downright cold... compared

Not even the real claims go to court either.

The whole point of small claims is to avoid going to court because that shit would be expensive, so saying that small claims is fine because it wouldn’t validate false claims with court dates is pretty fucking stupid.

B. Low Medown says:

Re: Chill out

You can’t even take your own photographs without worrying about infringing someone else’s intangibles.

Note the KEY word, there.

*You pirates don’t just accidentally but intend, as old saying has it, ignore the distinction between "mine" and "yours". You go to great lengths to steal the work of others, and brag about it.

"I’m a pirate, you can’t stop me!" is the true position of Techdirt and its fanboys, and the only honest thing you pirates ever say.

B. Low Medown says:

If I don't eat somebody else's cake, won't make me fat!

You may be thinking, "I won’t infringe copyright, I’ll just make sure not to use any protected works."

Yup, simple…

Here’s why that will not be as easy as you might think. First, copyright is automatic. This means that when someone snaps a new photo, they immediately hold the rights to it. If you found a photo or other work that you wanted to use, you would need to get permission from the rightsholder.

No, you violated the stated condition. — "If I don’t eat somebody else’s cake, won’t make me fat." (Deliberately goes to find somebody else’s cake and eats it.) "WAAA! I’m fat! That damned cake-owner tricked me!" — The logic is so flawed that must be deliberate deception in order to go on with yet another sky-is-falling rant.

This seemed familiar; is the exact take that Google-and-other-corporates-funded EFF has:

https://www.eff.org/deeplinks/2019/07/bad-copyright-bill-moves-forward-no-serious-understanding-its-dangers

It’s corporate-funded lawyers arguing against the Constitutional provisions of copyright.

Just keeping paws off isn’t "easy" for those who have empty heads nor for grifters wanting to gain money by using someone else’s work.

And now @ "Stone": state specific case, not just "sky is falling!"

@ "Gary", who’s actually astro-turfing by Timothy Geigner, aka "Dark Helmet": your tactic of simply reversing reality and claiming that I’M for corporations cannot work if my text is read.

@ Masnick / Techdirt: that’s why you censor, must keep ANY other viewpoint from being seen. That’s why you’re down to simple gain-sayers like "Stone" and "Gary". — And by the way: where’s the Podcast this week? Did you look at the figgers and decide that’s just not worth it?

Stephen T. Stone (profile) says:

Re:

Every false copyright claim, every copyright claim that knocks offline what would clearly be protected third-party speech under Fair Use principles, and every copyright claim made specifically to knock offline protected third-party speech regardless of Fair Use — all of them count as copyright being used as a tool of censorship. And that statement applies equally to claims filed either by a person or persons (and their respective individual[s]) or by a corporation.

And since copyright is a government grant, the use of copyright as a tool of censorship counts as government-backed censorship. A corporation using copyright that way is legally censoring speech with the implicit (and possibly explicit) approval of the federal government. I wonder: Since you despise censorship of speech (especially by corporations) but love copyright, how do you reconcile holding those two contradictory opinions simultaneously?

Cdaragorn (profile) says:

Re: If I don't eat somebody else's cake, won't make me fat!

"It’s corporate-funded lawyers arguing against the Constitutional provisions of copyright."

You know saying the same lie over and over again can never make it true. Go ahead, keep trying. You just undercut your own half made arguments to everyone who actually knows what the Constitution says about copyright.

Gary (profile) says:

Re: If I don't eat somebody else's Copyright

@ "Gary", who’s actually astro-turfing by Timothy Geigner, aka "Dark Helmet": your tactic of simply reversing reality and claiming that I’M for corporations cannot work if my text is read.

I’m just going to jump in here and point out that Blue Balls always jumps in and cries about his made up rights, but when it comes down to it he always sides with big corporations over individuals if imaginary property is on the line.

You keep saying you hate corporations – but love donning the slave collar and begging for their instructions.

Cheers, mate. Enjoy your subservience to corporations.

Anonymous Coward says:

how many times have we seen similar ‘good intentions’? the problem in the majority of cases is that the person wanting to bring the bill into law doesn’t have a fucking clue what they’re talking about, what the consequences are, nor do they care, and are often doing what it is they’re doing because a particular ‘group’ has given ‘encouragement’! how everyone else is affected is immaterial because those who want it, get a bit of control. the problem then is when those who are affected, bring in a law of their own, for what they want that affects those who did their thing first. the viscous circle created just continues. the bigger problem though, in my opinion, are the fuckers in the lobbying game who dont give a shit for anything or anyone as long as they get the law through for the body that’s paying them and to hell completely with all the consequences!!

That One Guy (profile) says:

Re: Re:

Copyright trolling/extortion is bad enough when there’s a possibility that the extortionist will actually have to take their would-be victim to a real court, knock even that out and replace it with a sham court where there’s effectively no real way to appeal and copyright extortion will skyrocket practically overnight.

That One Guy (profile) says:

Re: Re: Ah to be that naive again...

Did you bother to read the entire article? Because that very point was addressed towards the end.

So it’s easy, right? Simply opt-out.

Yes, for many would-be defendants, especially the more legally sophisticated ones like large internet companies, opting out of each claim brought against them is not likely to be difficult, even if it is time and resource intensive. However, think about what you might do if you received an envelope claiming to be from a governmental body you have never heard of and asserting that you are potentially liable for infringing copyright. Many would simply ignore it or simply not understand the significance or the potential consequences. Others might perceive this notification as a form of phishing or a potential scam. 60 days elapse and you are now subject to the determinations of the CCB. The next letter you receive may be correspondence from a law firm (on behalf of the claimant) offering you a settlement deal that lets you buy your way out of the legal fight and the possibility of a $30,000 liability. Now what should you do: settle or try to defend yourself at the risk of a higher liability amount?

me says:

Re: Re: Re: Ah to be that naive again...

I’m naive? yet you truthfully you believe that "many" people who receive legal papers by personal service just laugh and say "oh I’ve never heard of this before" and toss it in the trash?

the infringers have to be notified by personal service, how likely is it that anyone dumb enough to think that’s a phishing scam is going to be able to write a check for $30,000 – not many, if any lol

so no money means no case also, think about it

if you want to sue someone – find someone who has the money to pay you if you win…little tip for you

Anonymous Coward says:

Re: Re: Re:2 Ah to be that naive again...

It seems that you have likely read the pending bill. It also seems clear that those giving you grief have not done so.

This bill is nothing more than an ADR process that is easily avoided if one wishes. To claim the bill is terrible because some people may choose to ignore notices is to reduce our laws to the lowest common denominator of stupid.

There are legitimate reasons to have concerns over the bill, but the existence of stupid people is not one of them.

me says:

Re: Re: Re:4 Ah to be that naive again...

"if you want to sue someone – find someone who has the money to pay you if you win…little tip for you

Thanks for describing the copyright trolling business model, champ."

well yes, but actually no

the "least legally savvy people" cannot write a check for thousands of dollars so targeting these people doesn’t make sense

you would have to target people who are so dumb that they are going to throw out legal papers that have been delivered to them by personal service – and if they aren’t delivered correctly then they aren’t valid btw

just think about it for awhile…sue people who have money, people with money are legally savvy or have access to someone who is …so they can opt out IF they want

people with no money can’t pay you even if you win

you see?

Anonymous Coward says:

Re: Re: Re:5 Ah to be that naive again...

the "least legally savvy people" cannot write a check for thousands of dollars so targeting these people doesn’t make sense

This was the RIAA’s business model from the very beginning, and very frequently happens in "sue them all" copyright enforcement.

Saying that it doesn’t make sense is not the same as "it doesn’t happen".

But very little about copyright enforcement in its current form makes any damn sense.

Anonymous Coward says:

Re: Re: Re:

"this process would give people a faster, easier way to settle infringement cases"

What about those who are innocent and obviously are not inclined to "settle" with those who accuse them? What is a person to do when they begin receiving multiple accusations each and every day just like the friggin robocalls? Your streamlined way to settle assumes guilt before any discovery, any due process and probably will demand payment or they will call the police and have you arrested. You ever get any if those robocalls? Get ready for the tsunami of copyright accusation robocalls because we all know they are coming unless you are in denial.

CrushU (profile) says:

Re: Re: Re:

Say that again, but slowly.

If you can opt out for a federal case instead, who would want to use this arbitration, that appears to be biased in favor of the rightsholders? That’s right, no one. Both the innocent and the guilty wouldn’t be interested in this arbitration. That means the only time it will get used is when someone isn’t legally savvy.

That’s why it’s being brought up. Yes, all laws have this flaw, but this law specifically only functions when this flaw is in effect.

That Anonymous Coward (profile) says:

I forget the actual number but people violate copyright on average a silly number of times a day.

They tried already to get Corporate Law with 6-Strikes, but that fell apart because it was really shitty.

Now we can make a pretend court where an IP address is 51% proof & the claims of well they liked GOT on FB so they totally "stole" the episode are treated as real.

I tried to discuss this with someone on teh Twitters, hes a law prof & he was falling over himself to explain how this couldn’t be abused and would be way better for everyone. I pointed out that copyright law as it stands is flawed & perhaps we should fix it before we try bolting new things on. The same people who claimed they would die if the VCR was allowed, who then made record profits… are claiming they are dying again.

Lets run that risk this time.

Copyright law needs to be updated.
$750,000 makes sense as damages against someone who sets up a duplication facility to sell works they don’t have the rights to in a retail style. (As well as labels in Canada who ‘oops we forgot’ to get permission & pay artists for (at the time the rate they wanted to charge citizens brought the total to like 6 billion).

Want a rocket docket? Sure.
Your damages are capped at 3x retail.
If I can rent your stream for $1 and I download a copy to watch from the deep dark web I’m on the hook for $3.
Even the insane lost sale doctrine can’t argue with this, because they are getting 3 times the price (in full without any platform fees) the platform charged.
Having damages higher than the amount of money a 15 yr old might earn in their entire life b/c they downloaded a single music track doesn’t put the fear of copyright into us, it shows how insane the law has become with punishment untethered from reality.

Copyright is completely one sided, the public bears all the costs of protecting the rights and all of the punishment, we can’t even get the idea of a quarter per bad url in a DMCA notice taken seriously, despite the billions of flawed urls submitted in a never ending stream.
We own this birdsong, no you don’t, YES WE DO!
And the reason we never see this challenged in court (despite there being hollow words laying out the process) is the rightholders have deep pockets & are willing to outlast you. Even if you win, there is still only like a 10% shot that as the prevailing party you’ll recover costs… you spent defending a video of you walking in a forest where an actual bird tweeted that some idiotic label claimed they owned. Oh and YT has decided that your counter claims were without merit and shutdown your account… while labels bogusly take down authorized content & can never ever face even stern tsking.

3x Retail Cap.
Convince them that making the content easier to obtain legally is a much better use of their warchests than trying to recover $15.

Anonymous Coward says:

Re: Re:

afaik, arbitration is not required to produce evidence in their version of discovery as there is no discovery.

Mutually agreed upon by whom? When does the accused get to agree to anything? When does the accused get to disagree with anything?

Does the public defenders office have sufficient funding to provide those in need with legal representation? They are already underfunded, over worked and underpaid. This is going to work out just fine.

Big Hairy Viking wielding a sword of whimsy says:

Re: Making an innocuous comment 'cause difficult to get in...

Yes, and or something here hits the dreaded "filters"….

So you posted this on Suprbay! First since September!

Yes, I still check that, ’cause it’s still a hoot that you post on an explicit pirate site while claim to "support copyright". (Actually, haven’t seen you nor fanboys write that LIE for some time now, guess so blatant a LIE that makes even you flinch!)

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