By Whitney Kimball
You’re served with a notice. Apparently you’d shared some photos you didn’t own on the internet a while ago, and now someone–possibly an artist, possibly a copyright troll–can file for damages of up to $30,000. Scam, you think, and toss the paper. You’re served with a second paper 30 days later, but you toss that too.
Unfortunately for you, those copyright infringement proceedings were real, and you’d had 60 days to “opt-out” of them and go on about your day. But you didn’t opt-out, so you’ve automatically opted-in and waived your right to a trial by jury. Now a government entity unbeknownst to you–something called the Copyright Claims Board–has determined, without judge or jury, that you owe this person $30,000.
Now you have 90 days to file an appeal with a judge in federal district court, but the law behind this makes it extremely unlikely that the judge will rule in your favor, and anyway, you’ll probably need to hire an attorney. You’re on the hook.
This is a scenario, at least, which critics of the Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act) foresee. The bill passed the House last night and next moves to the Senate.
Who is this for?
Say you’re a professional illustrator, and you posted a drawing on Tumblr (a sloth, perhaps). Suddenly your drawing appears on a T-shirt you didn’t make in an Instagram ad for an artsy merch company. You issue a takedown notice, but the image resurfaces. You can’t afford the expenses (averaging $397,000, according to the Institute for Policy Innovation) to bring copyright litigation in federal court, and people keep printing T-shirts.
The CASE Act, sponsored by Democrat Hakeem Jeffries, would spare you the previously prohibitive costs by establishing an out-of-court tribunal under the Copyright Office to handle “small claims,” with no attorney required. The tribunal of experienced copyright lawyers could award damages of up to $15,000 for misuse of one copyrighted work and $30,000 for misuse of two or more works.
“People will still be able to pursue infringement cases in federal court, but this is for individuals who cannot afford that expense,” the National Press Photographers Association General Counsel Mickey Osterreicher told PetaPixel in May. “The small claims copyright tribunal may be a viable alternative when seeking a small licensing fee or [for photographers] wishing to represent themselves.” This week, the American Bar Association published an op-ed to the same effect.
Almost all CASE Act critics, including the ACLU–which has sent a letter to lawmakers clearly enumerating the bill’s problems–agree that artists need an alternative to the current copyright system.
Is an out-of-court tribunal unconstitutional?
Tribunals already exist; the Patent and Trademark Office’s Patent Trial and Appeal Board can revoke invalid patents. But in a paper published by the Berkeley Technology Law Journal, scholars point out that the Supreme Court has only ruled in favor of such tribunals for adjudicating “public” rights; that the status of copyright as a “public” or “private” issue is unclear.
The act also, arguably unconstitutionally, circumvents due process with its “opt-out” policy, which mandates that you’re automatically opted-in unless you heeded the notice and dismissed the proceedings.
Now that you’re on the hook, it’s near-impossible to appeal with a district federal court judge; you can only prove that the Copyright Claims Board engaged in misconduct, exceeded its authority, or that your missing the deadline was “excusable neglect.” You parse through the language of the CASE Act to figure out what qualifies as “excusable neglect,” but the act doesn’t say, so you’ll probably need to hire a lawyer. Even in the unlikely event that you can prove any of those things, there’s a chance that the claimant who’d filed this against you will take you to federal court with a copyright infringement suit, costing you thousands of dollars in legal fees and up to $150,000 in damages.
Enter the trolls
“The copyright troll’s job is really simple,” Ernesto Falcon, the Electronic Frontier Foundation’s Senior Legislative Counsel, wrote in an email to Gizmodo. “Get anyone who is a rightsholder (which is anyone who made a photo, a meme, a writing, a sound recording, a video, or any fixed work) and have them assign you the right to sue on your behalf in exchange for money. Then cast a wide net on claims on anyone who touched that rightsholder’s copyright (retweeting, resharing, reposting) and hope you catch bait of an unsuspecting American who missed their notice from the Copyright Board.” (The Act states that respondents will be “properly served” with the notice but that process could go awry in any of a number of scenarios—especially while the process is still new and the public’s unaware of it.)
Meredith Rose, Policy Counsel for the open internet advocacy group Public Knowledge, supposes that a serial copyright infringer would know to opt-out, hedging their bets that the person filing the complaint lacks the resources to file a federal suit.
“Who are the people who are left over?” Rose asked when speaking with Gizmodo by phone. “It’s the unsophisticated individual end-user. And in an era in which we get phone calls saying our Social Security numbers have been canceled, people might look at a notice, say this doesn’t look right, and ignore it.”
“If I can get claims up to $15,000 for infringement of this work, and x percentage of respondents don’t opt-out, that seems like pretty good math for a copyright troll,” Rose added.
Are the critiques an absurd and bald-faced lie?
“The idea that it would be used for copyright trolling is absolutely absurd and a bald-faced lie,” Keith Kupferschmid, CEO of the Copyright Alliance, told Gizmodo over the phone. “We’ve heard these sky-is-falling arguments before when the Digital Millennium Copyright Act (DMCA) was passed,” he said. “It included a provision that a creator can send a notice to someone who posts something asking them to take it down, but the supposed chilling effect never came to fruition.”
But trolls do rampantly abuse DMCA takedown notices. Just last week, the platform settled a lawsuit against Christopher Brady, who allegedly filed multiple erroneous DMCA notices in order to extort vloggers who didn’t want their accounts taken down. Trolls used multiple copyright claims to monetize on a music technologist’s video of white noise (a lucrative genre). Bots send takedown notices. The EFF got a takedown notice for tweeting an article about a takedown notice. There are, to say the least, countless examples of the DMCA being abused.
What of our memes?
Kupferschmid says that those would be protected under the fair use section of the Copyright Act, a four-factor test which includes whether there is any harm caused by the use of a creative work and whether the user is transforming the work by adding something new. Plus, he noted that federal copyright infringement penalties range up to $150,000–ten percent of the Copyright Claims Board’s maximum single-infringement penalty of $15,000–and argued that “courts rarely enforce the maximum penalty.”
But determining whether or not a work meets the criteria for being deemed fair use is often in the eye of the beholder. And when’s the last time that you considered whether or not a meme was truly transformative of the source material?
Anyway
The Senate seems less likely to pass this version of CASE, Meredith Rose said. “We’ve been hearing more concerns from Senate side and are working to see if we can craft some version of this bill that doesn’t create the knock-on effects.”
As it is, Rose said, it’s “constitutionally suspect at best.”
Update, 10/23, 3:25PM: A spokesperson from Congressman Hakeem Jeffries’s office responded to Gizmodo’s request for comment. “This is not to make perfect the enemy of great,” they said. “What we have now is bad; would you rather go from bad to great or bad to nothing? I can’t tell you the outpouring of support we’ve gotten from middle-class musicians and artists in New York who say we badly need this remedy. It’s to make sure that artists earn a living and are paid for what they do.”