Congress Looks To Rush Through Unconstitutional Pro-Copyright Trolls Bill, Despite Promising To Explore Alternatives

from the because-of-course dept

We've written a bunch about the CASE Act, which Congress (misleadingly) has referred to as a sort of "small claims court" for copyright claims. Supporters say that this is needed because actually going to federal court, where copyright claims are normally heard, is too expensive for smaller copyright holders. There are multiple problems with this, starting with the fact that an entire industry of copyright trolling firms has been built up around "helping" smaller copyright holders demand payment from anyone who uses their works, and the courts are already flooded with such cases (many of which are already dubious). Second, the CASE Act is not actually about "small claims" nor is it a "court." The process it can create -- a tribunal within the Copyright Office -- can order accused infringers to pay up to $30,000, which is not very small at all. Yet, Congress is so out of touch with the average American citizen that one member, Rep. Doug Collins, literally laughed about how $30,000 was such a "small claim."

The CASE Act has received almost no debate in Congress this session. @RepDougCollins shows one reason why: they think $30,000 is "truly" small claims. Tell Congress how being asked to come up with this kind of money would affect you. https://t.co/5C6FX3reG7 pic.twitter.com/f0qN0tOoZE — EFF (@EFF) September 21, 2019

Unfortunately, not everyone is like Doug Collins with multiple real estate holdings and a teacher's pension, and can afford a $30,000 fine for merely posting an image you like on social media.

Part of the insanity of the CASE Act is Congress's complete unwillingness to recognize that in making copyright trolling easier, we are guaranteed to see a significant increase in copyright trolling shakedowns. They act as if that won't happen -- which is quite incredible.

But, even worse, is the process behind all of this. As well-respected copyright expert Pam Samuelson explained, the CASE Act is likely unconstitutional, because it's fairly well established that the executive branch (Article 1) cannot route around the judicial branch (Article III) by setting up its own tribunals to handle disputes involving "private rights." While the courts have upheld other tribunals, including the important PTAB patent review tribunal, that's an entirely different matter. The PTAB is analyzing whether or not a patent was properly granted by the Patent Office, not whether or not there is infringement.

The tribunal established by the CASE Act, on the other hand, would be adjudicating questions of infringement, which is clearly an Article III issue.

Incredibly, with so many problems with the bill and so many concerns about the constitutionality of it, you'd think that Congress would be interested in exploring a more careful approach or in investigating the potential consequences of the bill. You'd be wrong:

While there was a hearing held at the end of the 115th Congress on September 27, 2018, there was no hearing in the 116th Congress. Most of the House Judiciary Committee has changed due to retirements and a new democratic majority in the House. Additionally, none of the numerous public interest groups or constitutional scholars that have issues with the legislation were invited to testify. Even so, with almost no notice, the bill was marked up late in the evening in the House Judiciary Committee on September 10, 2019, when Members were tired or simply leaving. Furthermore, the CASE Act was added to the markup after a marathon session on several highly controversial firearms bills. Fortunately, multiple Members raised concerns and were promised by the sponsors that amendments would be considered before bringing the legislation to the floor. Unfortunately, there has been no opportunity to amend the bill. The manager's amendment is nearly identical to the original bill.

Yup. The original bill, which faced no hearings in the current Congress, and which the leadership has blocked any ability to fix or amend, is up for a vote tomorrow. It's time to call your Congressional Reps right now and tell them what you think of the CASE Act and the sorts of copyright trolling it will enable. As EFF explains:

The new tribunals will receive complaints from rightsholders (anyone that has taken a photo, video, or written something) and will issue a “notice” to the party being sued. We don’t actually know what this notice will look like. It could be an email, a text message, a phone call with voice mail, or a letter in the mail. Once the notice goes out, the targeted user has to respond within a tight deadline. Fail to respond in time means you’ll automatically lose, and are on the hook for $30,000. That’s why EFF is concerned that this law will easily be abused by copyright trolls. The trolls will cast a wide net, in hopes of catching Internet users unaware. Corporations with lawyers will be able to avoid all this, because they’ll have paid employees in charge of opting out of the CASE Act. But regular Americans with kids, jobs, and other real-life obligations could easily miss those notices, and lose out.

The CASE Act creates a massive, incredibly detrimental, change to copyright law that will enable massive amounts of trolling, and huge fines for ordinary people doing ordinary things online, like sharing photos on social media. That Congress is rushing this through, ignoring all the concerns, is a travesty and should not be allowed.

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Filed Under: $30000, case act, copyright, copyright trolling, doug colling, sharing, small claims, social media