Government policy has a tendency to derail from its good intentions. Will the CASE Act help defend copyright, or be weaponized against free speech?
July 15, 2019
By: Bobby Casey, Managing Director GWP
I’m going to ask you to keep something in mind while you read through this. It’s going to seem odd, but just humor me.
William Shakespeare introduced over 1,700 words and at least 45 idiomatic phrases to the English language.
That’s an incredible contribution to the English language! This is as incredible a feat as a brand becoming interchangeable with the product itself (e.g. Kleenex vs tissue paper or Xerox vs photocopy or Band Aid vs adhesive bandage).
For a brand to be integrated into a language in such an indelible way is a welcomed achievement. I can only imagine that the Bard would likewise be impressed with how ingrained his words and phrases have become.
I chose Shakespeare not because of his remarkable talent as a bard, but because of the pervasiveness of his words and phrases. Without the internet, he achieved this level of influence.
With the internet, images and catch phrases are coming and going on what seems like a minute by minute basis! The reason why this can be, is because of the ability to click “Share”.
Now imagine if everything you share is protected by copyright. What would be the point of social media if we couldn’t share ideas and posts? I’m not saying that everything that is shared is as profound as what Shakespeare wrote. But I would ask you to consider the impact copyright would have if we couldn’t use his words and phrases freely.
Personal feelings toward Intellectual Property aside, there comes a point where copyright protections can lead to an infringement on free speech. As we discussed when the Copyright Directive in the EU was passed last September, this all but secures the current Big Tech players their place at the top.
The E-Commerce Times clarifies with, “The directive also requires internet platforms to design filtering systems that avoid catching “non-infringing” works. The systems must also have “rapid redress” processes for quick resolution of copyright disputes.”
Now something similar is coming across in the US called the CASE Act.
As if the US was not already litigious enough, the CASE Act is back in circulation and up for a vote soon in the US Senate.
This bill creates a situation where Internet users could easily be on the hook for multiple $5,000 copyright infringement judgments without many of the traditional legal safeguards or rights of appeal our justice system provides.
It’s easy to see why some take exception to this piece of legislation:
- The current proposed cap is $15,000 per work per proceeding. That’s much higher than a small claims court.
- There’s nothing stopping the Register of Copyrights from raising that cap in the future.
- These charges do not need any proof of harm or profit to stick.
- This would lift the requirement that a work be registered with the Copyright Office before an infringement was made to claim statutory damages. This carries a maximum of $7,500 per work.
The initial “good intentions” of the CASE Act was to give small-time creators a means of seeking remunerations without having to go through an often costly Federal court system. It was to create a sort of “Small Claims” court and simplify the process.
To be fair, the Copyright Office can throw out cases at its discretion, if they feel they were filed in bad faith. There can also be penalties and up to one year hold on those who frivolously file.
What makes this a toothless bill, however, is the opt-out clause. That’s right. Participation in this is entirely voluntary! If someone brings a suit against you via the Copyright Office, you can just respond that you’re opting out, and that’s it. It’s over.
They can still take you to Federal Court, but only if they have the means. A typical case can run well into the six figure range.
Where this gets blurry, if not entirely problematic, is in the potential to be used as a censorship tool. Currently on the books is the Digital Millennium Copyright Act (DMCA).
This allows people to file a take-down notice to any platform (such as social media) on the grounds of copyright infringement, but likewise allows for a counter-notice to dispute it. The platform then could put the material back up in fourteen days.
However, the Electronic Frontier Foundation (EFF) makes an interesting observation:
But the CASE Act would allow a party that filed a take-down notice to also bring a claim with the new “small claims” tribunal. When they do so, the internet platform doesn’t have to honor the counter-notice by putting the posted material back online within 14 days.
That makes me nervous. How can the press or even peer-to-peer platforms share time-sensitive information, if they can be easily obstructed or disrupted by a copyright claim in this way? Without the burden to prove harm or profit it looks like there are ways in which information can be suppressed, or at the very least delayed.
Let’s go back to Shakespeare. Imagine if all his words and idioms were copyrighted, and people could be charged with infringement for using such phrases as:
- Heart of gold
- Wild goose chase
- Lie low
- Break the ice
- Wear your heart on your sleeve
Or such words as:
Where would we be? Or more aptly, what works would we not have? These words and phrases would still exist, only it would ostensibly be a violation of copyright.
There might have been a time when such a notion would seem preposterous. But with what passed in the EU, and what seems to be seeping into the US, it doesn’t sound outside the realm of possibilities.
I understand the wish to safeguard money-making ideas. But I wonder what new creations or ideas we have missed, or what information we will miss out on because people went too far with the copyright defense.
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