The House Overwhelmingly Passed A New Digital Copyright Bill. Here Are Some Concerns.

On Tuesday, the House of Representatives passed the Copyright Alternative in Small-Claims Enforcement Act, or the CASE Act for short, by a staggering 410–6 vote despite holding no hearings and no debates on the matter. For the sake of public transparency — which the US government so often fails to uphold — it’s about time we examine how these controversial changes could both streamline and complicate our digital lives moving forward.

Introduced last year by Rep. Hakeem Jeffries (D-NY), the law does come from a good faith place of trying to grant “graphic artists, photographers, and other content creators” easier legal pathways to receiving damages for unfair infringements. Under current law, all copyright cases must be conducted through federal courts known for forcing exorbitant court fees against both parties and time-consuming constraints on formal litigations. This proposal would establish a Copyright Office where officer tribunals would resolve claims and damages first-hand alongside both parties outside the courtroom (which is arguably unconstitutional). Damages would also be capped at around $15,000 per claim and $30,000 in total.

“The internet has provided many benefits to society. It is a wonderful thing, but it cannot be allowed to function as if it is the Wild West with absolutely no rules,” Jeffries told The Verge during an interview last month. “We have seen that there are bad actors throughout society and the world who take advantage of the internet as a platform in a variety of ways. We cannot allow it.” The action has since garnered a mixed reception from tech skeptics to copyright defenders. The Copyright Alliance, the non-profit organization for artists, applauded the decision as a “landmark case” for creators.

“The CASE Act continues to be a legislative priority for hundreds of thousands of photographers, illustrators, graphic artists, songwriters, authors, bloggers, YouTubers and other types of creators and small businesses across the country,” added Keith Kupferschmid, the organization’s CEO. “These creators are the lifeblood of the U.S. economy. Unfortunately, they currently have rights but no means to enforce them because federal court is too expensive and complex to navigate. Today’s vote… demonstrates not only the tremendous support for the bill but also the fact that members of Congress could not be bamboozled into believing the numerous falsehoods about the CASE Act that were proffered by those who philosophically oppose any copyright legislation that will help the creative community and who will use any means to achieve their illicit goals.”

Unlike Kupferschmid, I believe it’s best to avoid dismissing critics as complete propagandists. After all, the proposal has been brought into question by perfectly legitimate civil liberties groups such as the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU) and other entities who believe the CASE Act could encroach on First Amendment rights. “Any system to enable easier enforcement of copyrights runs the risk of creating a chilling effect with respect to speech online,” the ACLU wrote in a statement to lawmakers. “Many of these cases will be legitimate. However, some will not, and others, even if brought in good faith, may be defensible as fair use or for some other permissible reason.”

In a blog post from Monday, Ernesto Falcon, the senior legislative counsel for the EFF, wrote this bill even applies to work which hasn’t been registered, meaning there could be no barrier to entry before issuing creators and platforms notice of a potential lawsuit and a cease and desist request before a judgment is even made, leading to the not-so-hyperbolic worry about punishments over memes. This standard of pre-judgment is already the norm under the Digital Millennium Copyright Act (DMCA) where platforms tend to automatically remove content at the sight of a copyright notice, even if the claim is based on false or no grounds. 

Most recent examples of this slippery slope in action include President Trump’s tweet being DMCA’d over the use of a Nickleback song in a meme about his rival Joe Biden and Twitch streamer Destiny flagging Twitter critic @zei_squirrel over a (barely) controversial 11-second video to quote him about “saying the n-word all the time”. These claims of copyright have never seen the inside of a courtroom, a jury, even some copyright tribunal or site arbitration body to evaluate the situation. The platform simply smelled troubled and decided “guilty until proven innocent”, pointing to the allegations of systemic bias platforms hold for major media and popular icons who can get away with censorship against lesser-known users.

While Jeffries is correct to call the DMCA takedown system “inefficient, cumbersome,” and even “pointless” for content creators, he can’t seem to recognize his proposal could trade better efficiency for injustice. “There is no gun that is being held to anyone’s head, because the small claims court like tribunal is voluntary in nature,” Jeffries told The Verge. “Any argument made to the contrary, represents a deliberate attempt to misrepresent what’s at stake as part of the effort to do away with the content copyright laws that have been part of the fabric of our democracy since the founding of the Republic and in fact the Constitution. The internet doesn’t change the Constitution,”

The voluntary aspect is also brought into question by the EFF citing exemptions for Section 1201 of the DMCA, the laws bans “circumventing of access controls on copyrighted works” and also create their own exemptions, meaning the Copyright Office is within their rights to make their standards subjectively. This can offer a degree of freedom for case by case judgments, but we’re relying on the basis of officers rather than the law. And given it’s unclear how the opt-out option works, the system would appear coercive without clear and proper protections. As of today, only the Senate is still able to offer amendments if the bill is brought forth for a debate, reform, and eventual vote. According to Falcon, “If it passes, sharing most of what you see online — photos, videos, writings, and other works — means risking crippling liability.”

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