Another Zombie Bad Idea That Just Won't Die: Copyright Small Claims Court Would Be A Free Speech Disaster

from the free-money-for-trolls dept

Going all the way back to 2012, we were highlighting why a copyright "small claims court" might be problematic. It's been in discussion for a long, long time. There are some legitimate complaints from copyright holders that bringing a federal case is kind of expensive. But that's because it should be expensive. When Congress got serious about this issue back in 2016, we wrote about how it would be a huge tool for copyright trolls. Earlier this year lawyer Cathy Gellis explained how the law was a total disaster, in that it was built with the assumption that all copyright claims are legitimate ones. But that's a laughable claim -- as copyright lawsuits (and threats of lawsuits) are quite frequently used either to just shake people down for money or as a way of suppressing free speech.

Make it even easier to sue over copyright, and you can bet that it will be used much more often -- meaning with significantly more abuse.

We also had a guest post from lawyer Robert S. Schwartz, highlighting a very important point. One of the reasons why, historically, copyright law hasn't been as big of a concern for suppressing free speech was because of copyright toleration. That is, even though basically everyone infringes on many people's copyrights every single day, we've mostly "tolerated" many infringements, because common sense tells us that the law couldn't have been meant for such things.

But, as we lower the barriers to filing a copyright lawsuit, we throw this "toleration" out the window, and, with it, we open the floodgates for censorship. Congress is, once again, considering creating a small claims court for copyright, HR 3945, or the CASE Act. The House Judiciary Committee turns copyright and speech into speeding tickets:

...copyright claims should not be bulk-processed like traffic tickets—especially not when statutory damages under the CASE Act are so much higher than in traffic court, requiring no proof of actual harm. And especially not when the case won’t be heard by an actual judge, one whose job description doesn’t place copyright at the center of the legal universe.

During the hearing, proponents of the bill constantly pointed to the bill’s “opt-out” mechanism as the be-all, end-all answer to this problem. That argument very much misses the point. Proposed changes to CASE would add a second notice to be served to someone being accused of infringement under the new regime. That means the first notice to opt-out would look like spam and the second would like a legal summons, which people don’t traditionally have the option of opting out of.

The average person, faced with being served in the same way they would be for a real lawsuit, is not going to understand that they can opt out of this system. When people have enough trouble understanding how to challenge false DMCA notices, how are they going to know how to respond to a confusing summons from Washington, D.C.?

One of the participants at the hearing, CCIA's Matt Schruers also highlighted how there's no clear evidence that there's some how a true "barrier" to filing copyright lawsuits today:

The idea that copyright plaintiffs are generally underserved by the existing remedies toolbox is somewhat difficult to reconcile with current data about copyright plaintiffs’ utilization of the federal court system. As I discussed with the Subcommittee in 2014, the statutory damages system has incentivized plaintiffs to inundate the federal litigation docket with instances of predatory enforcement, often referred to as copyright “trolling,” similar to the phenomenon of patent trolling. As one news publication noted, “[t]he existing digital copyright system has also led to claims of abuses, bizarre false positives, political censorship, and even fraud”. Some plaintiff misconduct that I identified in my 2014 testimony has led to criminal convictions.

Since we last discussed copyright remedies four years ago, these cases continue to clog federal courts. In 2014, I discussed the proliferation of multi-defendant John Doe complaints in federal copyright litigation, many of them involving pornography. At that time, recent research from Professor Matthew Sag found that these John Doe cases comprised the majority of copyright cases in over 20% of U.S. federal trial courts, and a third of federal copyright cases involved pornography. Today, the data shows that this problematic trend has continued. A 2018 article co-authored by Prof. Sag finds that John Doe suits by these serial litigants account for nearly half of all copyright cases filed in the U.S. from 2014 to 2016, including around 10,000 lawsuits, implicating hundreds of thousands of defendants,7 some wrongfully accused.

This is potentially a huge deal. While supporters of the bill keep insisting that this won't have a huge impact, all of the evidence of how copyright law is already abused suggests otherwise. We live in a world where, every new piece of creative work since 1978 automatically gets a copyright. And, just as that was happening, the internet was growing and building a global network of connected computers, which basically are "copying" content all the time. Some of that is clearly unfair to the creators/copyright holders of those works. But much of it is purely innocent and harmless. And we've survived in that we let most of that go. But opening up a small claims effort will drastically change the equation, leading to much greater attempts to censor.

Unfortunately, many in Congress don't seem to realize that this is already happening. As the EFF post notes:

Both some members of the House Judiciary Committee and entertainment industry witnesses during the hearing seem convinced that copyright trolls and the average small user who does not understand this process are “hypothetical.” Neither of these things is hypothetical. Lawsuits against individual Internet users alleging copyright infringement over BitTorrent networks—one of the most prolific types of copyright trolling—are just under half of all copyright lawsuits in the U.S. The plaintiffs in these cases pursue landlords and nursing home operators, elderly people with little or no knowledge of the Internet, and deployed military personnel. As is often the case in situations like these, the people hurt will not be major companies, but small businesses and individuals.

Copyright has long had an extremely uneasy balance with the First Amendment and free speech. The CASE Act and a small claims court for copyright would completely shift the way that balance works, massively tilting the scales away from free speech.


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  • icon
    Gary (profile), 1 Oct 2018 @ 12:10pm

    Toleration

    We tolerate "infringement" every day because of the ridiculous over-reach of existing copyright law. Instead of scaling the law backt towards a reasonable compromise it just keeps getting ratched upwards.
    The CASE Act would just legitimize petty shakedowns.

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

  • icon
    hij (profile), 1 Oct 2018 @ 2:04pm

    Who did that?

    On the plus side the court would surely not be used by unscrupulous people to get information about people they do not like on the internet? </sarcasm>

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

  • icon
    That One Guy (profile), 1 Oct 2018 @ 2:43pm

    Well if that's the standard you want to use...

    A 2018 article co-authored by Prof. Sag finds that John Doe suits by these serial litigants account for nearly half of all copyright cases filed in the U.S. from 2014 to 2016, including around 10,000 lawsuits,

    Both some members of the House Judiciary Committee and entertainment industry witnesses during the hearing seem convinced that copyright trolls and the average small user who does not understand this process are “hypothetical.”

    If the existence of nearly half of all copyright cases are merely 'hypothetical', then you could just as easily say that copyright infringement itself is 'merely hypothetical'. No evidence it exists at all, and as such there's absolutely no need for an additional law dealing with it.

    The willful blindness on display there is truly stunning, though hardly surprising. Can't have those pesky facts getting in the way of being able to shake people down and/or silence them easier after all.

    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 Oct 2018 @ 3:22pm

    By leaving copyright holders having meritorious claims, but limited means, wafting in the wind, the article’s author confirms that this site Is deaf to their concerns and aligned with wrongdoers.

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

    • icon
      Toom1275 (profile), 1 Oct 2018 @ 3:32pm

      Re:

      False premise.

      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 Oct 2018 @ 3:38pm

        Re: Re:

        There is no other way to interpret “it should be expensive”. Under his worldview persons of limited means are SOL.

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

        • identicon
          Anonymous Coward, 1 Oct 2018 @ 4:15pm

          Re: Re: Re:

          Why should I, or anyone else, be forced to subsidize your law suit - no matter what the issue is.

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

          • icon
            Toom1275 (profile), 1 Oct 2018 @ 6:00pm

            Re: Re: Re: Re:

            Well, if we're going to help facilitate fraudsters and thugs shaking innocent people down for money without due process over Imaginary Property, we might as well also help oyher thugs with shaking innocent people down for money without due process over imaginary drug crimes.

            Wait a minute...

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

        • identicon
          Anonymous Coward, 1 Oct 2018 @ 4:29pm

          Re: Re: Re:

          Like all the children the RIAA sued for their meal ticket?

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

        • identicon
          Anonymous Coward, 1 Oct 2018 @ 5:11pm

          Re: Re: Re:

          If only there was an entire post you could read instead of making up interpretations that fit your premise.

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

          • identicon
            Anonymous Coward, 1 Oct 2018 @ 5:51pm

            Re: Re: Re: Re:

            Yes but that wouldn’t fit his preconceived notions of how terribly destitute the average “starving artist” is. I mean it’s not any professional artists would ever sign up with a corporation that happens to have lawyers on staff...

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

    • identicon
      Anonymous Coward, 1 Oct 2018 @ 4:33pm

      Re:

      Hey dipshit, they can already sue. What more do you want? Taxpayer funded blowjobs?

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

      • identicon
        Anonymous Coward, 1 Oct 2018 @ 6:34pm

        Re: Re:

        You're probably not far off the mark. We've got one lunatic who thinks writing some code means the government is obliged to build him a mansion on the back of taxpayer funds.

        Nina Paley was right. Copyright is brain damage.

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

      • identicon
        Anonymous Coward, 2 Oct 2018 @ 10:11am

        Re: Re:

        "Taxpayer funded blowjobs?"

        Been going on now for some time - of course.

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

  • identicon
    Dariusz G. Jagielski, 1 Oct 2018 @ 4:10pm

    CASE Act = Copyright Anti-Speech Enforcement Act

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

  • identicon
    alternatives(), 1 Oct 2018 @ 5:45pm

    Judge and Lawyer VS pro se

    While justice is supposed to be blind humans be humaning and based on what I've seen the judges who run for re-election and get most of their election war chest from attorneys happily weight the odds for the attorney VS the pro-se in "small claims".

    So this idea is not gonna change things and will make things actually worse.

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

  • icon
    That Anonymous Coward (profile), 1 Oct 2018 @ 7:52pm

    Such a neat idea, keep removing the barriers of needing actual evidence & just allow them to rob people at will.

    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 Oct 2018 @ 8:37pm

    Mike Masnick just hates it when copyright law is enforced.

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

  • identicon
    Anonymous Coward, 1 Oct 2018 @ 9:25pm

    Small claims court for patent infringement is next

    That would be great. Low cost, quick verdict, protection for inventors.

    Great Idea!

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

    • identicon
      Anonymous Coward, 1 Oct 2018 @ 10:02pm

      Re: Small claims court for patent infringement is next

      Too bad someone’s already patented a type of helmet to help avoid severe brain damage, as you appear to need it quite badly.

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

    • identicon
      Anonymous Coward, 2 Oct 2018 @ 4:56am

      Re: Small claims court for patent infringement is next

      Shame Shiva Ayyadurai doesn't qualify.

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

    • identicon
      Anonymous Coward, 2 Oct 2018 @ 10:15am

      Re: Small claims court for patent infringement is next

      "protection for inventors"

      .. and to hell with everyone else, even grandma Jones who can not afford an internet connection much less a computer is accused and forced to pay for infringement that never occurred.

      Say - if one is subjected to this highway robbery, you must be a pirate tax, are they then allowed to write it off? What about a charitable contribution or is it a non business related bad debt?

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

    • icon
      That One Guy (profile), 2 Oct 2018 @ 3:33pm

      Two words: East Texas

      That's already been in place, and it was used, to the surprise of no-one, as a quick buck for extortionists.

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


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