Troubling Copyright Bill Goes to the US Senate

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A new bill coming before the Senate would establish a quasi-judicial body in the Copyright Office that would be empowered to levy fines of up to $30,000 for even inadvertent instances of copyright infringement. This is the last chance to stop or modify the CASE Act.

There are two sides to this issue. Those of us who make our livings from our words or pictures sometimes have to deal with people who appropriate our works with no intention of compensating us. I think this bill started with good intentions; it originally was described as small claims court for writers and artists. However, this bill does not deal with the issue of “orphan works” which are technically in copyright but which have no active “owner” – typically because the original writer or photographer died without clearly resolving who inherited the copyright, making it impossible to find anyone who could legitimately license it. Advocates claimed that they bill is written in a way that would discourage copyright trolls, but I am not convinced. I am not a strong supporter of the bill, but I don’t think it’s an unmitigated disaster.

Yeah, the intent may have been good, but when a “small claims” court has a maximum fine of three to ten times the maximum fine of nearly any state small claims court, along with the ability to bind people to its will if they failed to receive a notification, I think it’s just going to empower the copyright trolls more than anything else.

Given how it passed the House, my gut feeling is that it’s going to pass the Senate as well, so my hope is that by calling out these ways it can be easily abused by copyright trolls, the senators will modify it. (I have no knowledge of what’s actually possible with regard to modifications—hopefully it’s not too late.)

If it were truly voluntary, with both sides opting in, and if the maximum fine was significantly lower, I’d be fine with it. (Or, if I had any confidence that the Copyright Claims Board wouldn’t regularly award the maximum fine just because, that would help.)

I’m not really sure what the maximum fine should be. To my mind, small creators are the audience for this bill, and it’s hard to see a small creator being ripped off intentionally to the tune of $30,000. I can easily see $1000 to $5000, but what sort of creative works are people making available online in ways that they can ripped off where the damages would be higher than that? If we were talking about movie studios, sure, they could claim higher damages, but they’ll go straight to court and bypass any Copyright Claims Board.

While I certainly have reservations about the details, my bigger question is why is this needed at all? There are already legal remedies in place. Legal remedies overseen by (mostly) impartial judges, not lawyers incentivized to find people guilty of infringement and to impose large fines; legal remedies with an established notice process that makes it difficult for the defendant not to know they’ve been sued; an appeals process, etc. This just seems like an attempt to set up a second copyright justice system solely for the benefit of copyright holders because the existing justice system has the temerity to try to be fair to both parties.

why is this needed at all?

It sounds to me like it’s a way to streamline the process, basically making it easier to sue offenders.

But that also makes it easier for trolls to abuse the system and hurt the little guy. Sounds dangerous.

I think the maximum of $30,000 reflects the ugly reality of legal fees these days as well as a desire to hurt the culprits. It’s going to take significant lawyer time at $400/hour or up to make a case.

My impression is that the biggest problems are music, graphic arts and photography, but I have not kept track. I had a major publisher claim they owned the rights to one of my out of print books because they had purchased the former publisher. They caved quickly when I showed them a letter from the former publisher reverting rights to me, but it could have gotten ugly if I did not have all the paperwork.

The scale of digital piracy is often overhyped by lobbyists, but it’s very tempting for publishers and creators to blame piracy for declines in sales when they see unauthorized copies of their material posted. However, the realities are much more complex, and what I wanted to do was to point that out.

What a fun new way to clog up the courts.

Much as I’m not a fan of the bill as currently drafted, the entire point is to remove copyright cases from the courts.

It appears that Senators Ron Wyden and Rand Paul have blocked the bill from going to a vote in the Senate.