Copyright Act Could Be Disastrous, Experts Say

Here come the trolls

Key Takeaways

  • The CASE Act is being pushed through Congress by lawmakers in an attempt to rewrite the way digital outlets deal with copyright claims.
  • If Congress passes the CASE Act, digital creators will find themselves battling for their creative output in new ways while copyright holders have a new way to sort out claims.
  • The CASE Act has both legal and practical issues, according to experts, and raises constitutional concerns.
Judges gavel on book about copyright infringement.
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The Copyright Alternative in Small-Claims Enforcement Act, or CASE Act, has the potential to reorganize the way digital media handles copyright claims allowing litigious copyright holders a new vehicle for abuse, experts say.

With a looming government shutdown, U.S. lawmakers are seeking to push the bill through Congress by adding it to the must-pass omnibus spending bill with a Dec. 11 deadline. If passed, the bill would create a small-claims tribunal within the Copyright Office to allow copyright holders the ability to settle claims and seek damages up to $30,000 for the usage of their copyrighted materials.

Trade associations such as the American Society of Media Photographers and Graphic Artists Guild have advocated for the passage of the bill, citing a loss in licensing income from constant violations by both large companies and independent internet creators. Naysayers, on the other hand, suggest the bill will allow "copyright trolls" to abuse the new system.

"Seeing a bill like the CASE Act attached to a must-pass spending bill, when the CASE Act is controversial and is unrelated to the rest of the bill, is one of the many reasons why so many Americans think poorly of Congress," law professor Eric Goldman, co-director of the High Tech Law Institute at Santa Clara University, told Lifewire in an email interview.

"Even though Congress hopes for a different outcome, the vast bulk of the plaintiffs using the CASE Act will be engaging in illegitimate enforcement actions that will cause chaos throughout our economy."

“The CASE Act will cause substantial damage to many communities with minimal gains in a few other communities. This makes it bad policy.”

Experts Disagree

The controversial bill, which originally was introduced in 2019, has garnered rare bipartisan support. It passed the House by a vote of 410-6, with heavy-hitting lobbying groups such as the NAACP, AFL-CIO, and the American Bar Association supporting the contents of the legislation, creating a split between allies in the civil liberties sector. 

Other freedom organizations such as the American Civil Liberties Union and Electronic Frontier Foundation have come out in stark opposition to the bill. The potential for abuse is a primary concern for critics who have already had to contend with Digital Millennium Copyright Act (DMCA) claims that they say give preferential treatment to claimants and already have negatively impacted digital creators and users.

In an open letter, opponents to the bill, including the Center for Democracy and Technology and several library and university association signatories, urge Congress to rethink the inclusion of the CASE Act in the omnibus spending bill. The ripple effect, they suggest, will echo across important sectors and infringe on the ability of researchers and layman internet users to freely express themselves.

The letter writers state, "We respect Congress’s intent to improve our intellectual property system and protect the rights of creators and entrepreneurs. However, certain aspects of this package of bills will have negative impacts on small- and medium-sized businesses, creators, libraries and their patrons, students, teachers, educational institutions, religious institutions, fan communities, internet users, and free expression."

"...the vast bulk of the plaintiffs using the CASE Act will be engaging in illegitimate enforcement actions that will cause chaos throughout our economy."

The concerns outlined in the letter come on the heels of ongoing litigation regarding copyright cases with mundane online behaviors such as embedding Instagram photos. Low-merit court cases are likely to become more common with the passage of the CASE Act, with litigious petitioners utilizing the non-judicial tribunal to bring forth copyright claims with the expressed purpose of demanding quick settlements. 

A slew of internet users also could find themselves caught up in the life-changing damage awards as so-called "copyright trolls" bring an infinite number of claims to the extrajudicial committee--a committee whose constitutionality remains up for debate.

Legal Limbo

Legal scholars argue the Constitution requires legal decisions regarding private rights to be handled through the judicial branch as outlined in Article III. They posit the existence of a Copyright Office tribunal that doles out decisions on copyright infringement violates the separation of powers.

Power meant for the judicial branch, adjudicating private rights, is placed in the hands of the legislative body through the tribunal making its creation potentially unconstitutional. The Supreme Court will be the ultimate deciding factor in constitutionality, but as it stands there are legal issues regarding the formation of a legally binding tribunal.

A binder labeled "Copyright Law" sitting on a desk with notepads, paperclips, and writing instruments.
tumsasedgars / Getty Images

Outside of constitutionality, the opt-out system is another one of several issues with the contentious piece of legislation. In its current iteration, all defendants will be subject to the tribunal as an alternative to federal courts unless they choose to opt-out.

The immoderate process binds all but the most politically engaged defendants to the CASE Act procedure, barring affirmative dissent and essentially skirting key requirements afforded by the legal principle of due process.

Issues continue to pile up against the CASE Act as the clock ticks on the must-pass spending bill during a particularly devastating time, as COVID-19 surges across the country. Congress’ inability to see the pitfalls of the legislation is what worries experts like Goldman. The CASE Act seems noble on paper, but in practice, they fear it will be disastrous for internet freedoms.

“The CASE Act will cause substantial damage to many communities with minimal gains in a few other communities. This makes it bad policy,” Goldman said. “It's especially unfortunate when Congress should be working, instead, on the pandemic and its degradation of our economy.”

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