In July, members of the federal Senate Judiciary Committee chose to move forward with a bill targeting copyright abuse with a more streamlined way to collect damages, but critics say that it could still allow big online players to push smaller ones around—and even into bankruptcy.
Known as the Copyright Alternative in Small-Claims Enforcement (or CASE) Act, the bill was reintroduced in the House and Senate this spring by a roster of bipartisan lawmakers, with endorsements from such groups as the Copyright Alliance and the Graphic Artists’ Guild.
Under the bill, the U.S. Copyright Office would establish a new ‘small claims-style’ system for seeking damages, overseen by a three-person Copyright Claims Board. Owners of digital content who see that content used without permission would be able to file a claim for damages up to $15,000 for each work infringed, and $30,000 in total, if they registered their content with the Copyright Office, or half those amounts if they did not.
Groups such as the Electronic Frontier Foundation (EFF), Public Knowledge, and the Authors Alliance have opposed the bill, which such critics argue could also end up burdening individuals and small outfits, while potentially giving big companies and patent trolls a leg up.
In fact, in its present form, the bill establishes that content which is used without thinking does fall under the purview of the Copyright Claims Board—though reports of potential $15,000 fines for sharing memes are an obvious exaggeration.
According to the bill, “The Copyright Claims Board may not make any finding that, or consider whether, the infringement was committed willfully in making an award of statutory damages.” The Board would, however, be allowed to consider “whether the infringer has agreed to cease or mitigate the infringing activity” when it comes to awarding statutory damages.
Ernesto Falcon argued in another EFF post last month that the bill would also present censorship risks, given that the current legal system for content “takedown” notices, as defined by the Digital Millennium Copyright Act (DMCA), is already abused.
Under the new, additional framework, Falcon wrote, “[An] Internet platform doesn’t have to honor the counter-notice by putting the posted material back online within 14 days. Already, some of the worst abuses of the DMCA occur with time-sensitive material, as even a false infringement notice can effectively censor that material for up to two weeks during a newsworthy event, for example.”
He continued, “The CASE Act would allow unscrupulous filers to extend that period by months, for a small filing fee.”