Congress And The CASE Of The Proposed Bill That Helps Copyright Trolls

from the start-of-stopping-trolls dept

One of the recurrent themes on Techdirt is that law itself should not become a tool for unlawful abuse. No matter how well-intentioned, if a law provides bad actors with the ability and opportunity to easily chill others' speech or otherwise lawful activity, then it is not a good law.

The CASE Act is an example of a bad law. On the surface it may seem like a good one: one of the reasons people are able to abuse the legal system to shut down those they want to silence is because getting sucked into a lawsuit, even one you might win, can be so ruinously expensive. The CASE Act is intended to provide a more economical way to resolve certain types of copyright infringement disputes, particularly those involving lower monetary value.

But one of the reasons litigation is expensive is because there are number of checks built into it to make sure that before anyone can be forced to pay damages, or be stopped from saying or doing what they were saying or doing, that the party making this demand is actually entitled to. A big problem with the CASE Act is that in exchange for the cost-savings it may offer, it gives up many of those critical checks.

In recognition of the harm removal of these checks would invite, EFF has authored a letter to the House Judiciary Committee raising the alarm on how the CASE Act would only aggravate, rather than remediate, the significant troll problem.

Per the letter, federal courts have been increasingly "reining in [trolling behavior] by demanding specific and reliable evidence of infringement—more than boilerplate allegations—before issuing subpoenas for the identity of an alleged infringer. Some federal courts have also undertaken reviews of copyright troll plaintiffs’ communications with their targets with an eye to preventing coercion and intimidation. These reforms have reduced the financial incentive for the abusive business model of copyright trolling."

But under the CASE Act, these provisions would not apply. Instead

[L]egally unsophisticated defendants—the kind most often targeted by copyright trolls—are likely to find themselves bound by the judgments of a non-judicial body in faraway Washington, D.C., with few if any avenues for appeal. The statutory damages of up to $30,000 proposed in the CASE Act, while less than the $150,000 maximum in federal court, are still a daunting amount for many people in the U.S., more than high enough to coerce Internet users into paying settlements of $2,000–$8,000. Under the Act, a plaintiff engaged in copyright trolling would not need to show any evidence of actual harm in order to recover statutory damages. And unlike in the federal courts, statutory damages could be awarded under the CASE Act even for copyrights that are not registered with the Copyright Office before the alleged infringement began. This means that copyright trolls will be able to threaten home Internet users with life-altering damages—and profit from those threats—based on works with no commercial or artistic value.

And that's not all:

Another troubling provision of the CASE Act would permit the Copyright Office to dispense with even the minimal procedural protections established in the bill for claims of $5,000 or less. These “smaller claims”—which are still at or above the largest allowed in small claims court in 21 states—could be decided by a single “Claims Officer” in a summary procedure on the slimmest of evidence, yet still produce judgments enforceable in federal court with no meaningful right of appeal.

Also:

[T] he federal courts are extremely cautious when granting default judgments, and regularly set them aside to avoid injustice to unsophisticated defendants. Nothing in the CASE Act requires the Copyright Office to show the same concern for the rights of defendants. At minimum, a requirement that small claims procedures cannot commence unless defendants affirmatively opt in to those procedures would give the Copyright Office an incentive to ensure that defendants’ procedural and substantive rights are upheld. A truly fair process will be attractive to both copyright holders and those accused of infringement.

The CASE Act appears to reflect an idealized view that the only people who sue other people for copyright infringement are those who have valid claims. But that is not the world we live in. Trolls abound, parasites eager to use the threat of litigation as a club to extract money from innocent victims. And the CASE Act, if passed, would give them a bigger weapon.

It also gives would-be censors additional tools to chill their critics through the use of a new subpoena power administered through the Copyright Office, without sufficient due process built into the system to ensure that these subpoenas are not being used as a means of unjustly stripping speakers of their right to anonymous speech.

The CASE Act also gives the Copyright Office the authority to issue subpoenas for information about Internet subscribers. The safeguards for Internet users’ privacy established in the federal courts will not apply. In fact, the bill doesn’t even require that a copyright holder state a plausible claim of copyright infringement before requesting a subpoena—a basic requirement in federal court.

EFF was joined on this letter by many other lawyers (including me) and experts who have worked to defend innocent people from unjust threats of litigation, in the hope that it can help pressure Congress not to give the green light to more of it.


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  • icon
    Anonymous Anonymous Coward (profile), 30 Apr 2018 @ 4:39pm

    Keep pushing and one gets what one wants

    U.S. Constitution - Amendment 7 - Trial by Jury in Civil Cases

    In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

    Notes for this amendment: Proposed 9/25/1789 Ratified 12/15/1791

    In light of the 7th Amendment, and most likely others, how could this law be considered Constitutional?

    Possibly a better question is why the EFF didn't bring this up? Or did they, and it was just not mentioned?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Apr 2018 @ 7:18pm

      Re: What 7th Amendment rights?

      You have waved your rights to a trail and to the constitution. But fear not, you may still participate in binding arbitration. We are paying good money for a judge who will give your side of the case all the attention that we feel it deserves.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Apr 2018 @ 7:37pm

    Perhaps another question is why a small claims tribunal (or officer) still allows a payout of $5000 - $30,000. Is a DVD downloaded from the Internet really worth thousands of dollars? Is the professor who photocopied 11% of a book for students a dirty criminal?

    Damages awarded should be based on the actual harm suffered by the plaintiff. That would get rid of frivolous claims but still allow plaintiffs to recoup actual damages from harm.

    It's almost as if the law was intended to stop large-scale infringement (e.g. rogue printing presses, bootleg DVD manufacturers) as opposed to providing a way to extort money from individuals.

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 30 Apr 2018 @ 9:42pm

    Canada, Eh?

    The rule on lawsuits in Canada is that generally, the loser pays the legal bills of the winner. This (plus some actually sensible laws and judges) has put a serious limit on frivolous lawsuits. Plus it must be pointed out that when anyone's medical bills are pretty much zero, fully paid for by universal health care, there is a lot less damage to sue for. Finally, the provincial bar associations permit but frown on contingency arrangements... which are still risky with loser pays.

    I think we should also take a chapter from Britain. In British criminal cases, I am told, when the crown offers a plea deal they cannot go to court and ask for a sentence more than 50% greater than the offer. Logical - for those convinced they can win, it is not a huge gamble like say, being offered 6 months or "we ask the court for 35 years..."

    The same should be true of lawsuits. Any offer to settle should establish an upper limit on amount asked for in court - i.e. if we want you to settle for $2,000 then say the max should be $3,000. After all, any offer is presumably a fair assessment of the damages with a small premium for avoiding time and court costs.

    But sensible, trial-limiting tort reform? Congresscritters are already bought and paid for to avoid sensible reform.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 May 2018 @ 1:39am

    So who introduced this and what are they getting out of it so the 'little man' is screwed yet again?

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 1 May 2018 @ 2:59am

    They just want a rocket docket where it is accepted...

    IP = Person
    Male = Totally Stole the Porn
    Bit = 1 millionth of a file proves full download
    Extortion = Lawyers NEVER lie to courts

    Considering the Federal Courts can't even manage these cases correctly, does anyone know what happened to the Troll who got names for the alleged dling of a movie... that they submitted the wrong name to the court & the Director of the movie named got a bunch of hate from fans & had to ask the court why a case was filed using his copyright.

    Perhaps instead of trying to make the extortion easier, it is time to add some teeth to the DMCA with fines for improper use & bad notices. We can show millions of crap notices (considering the reading of the law suggests that Google could ignore the notices as they aren't hosting the material that would be billions) that inflict actual costs, where many of these claims seek thousands from thousands for a d rated film you could rent for 99 cents making it a blockbuster.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 1 May 2018 @ 9:19am

    Right from first word, you utterly omit consideration of GOOGLE!

    One of the recurrent themes on Techdirt is that law itself should not become a tool for unlawful abuse. No matter how well-intentioned, if a law provides bad actors with the ability and opportunity to easily chill others' speech or otherwise lawful activity, then it is not a good law.

    That's totally opposite what you advocate for the globalist corporation, GOOGLE, that pays the EFF "think tank" that you "work" for.

    YOU consistently in past and future advocate that CDA 230 is immunity for "internet" publishers, AND state that those mega-corporations have a "First Amendment Right" to control the speech of "natural" person on those "platforms", including prevent all access.

    YOU do not wish "platforms" to be Neutral Public Forums, but for the "law itself" (mere statute) to implement de facto Corporate Censorship, and control The Public, despite Constitutional guarantee of Free Speech. -- You hold that the CDA 230 clause empowers corporations to exactly that. You do so only by overlooking requirement for "good faith", besides that purpose of statute is for The Public to benefit, NOT legal fictions of corporations. Period.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 May 2018 @ 10:02am

    DMCA already prevents anonymous speech

    No subpoena is needed to quash anonymous speech; a DMCA notice can already do it. I don't know of any way to do an anonymous counternotice.

    reply to this | link to this | view in chronology ]


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