Congress is considering two controversial additions to the nation’s copyright law as part of a must-pass omnibus spending bill. If included in the legislation being negotiated at press time, the proposals would give copyright owners an expedited way to enforce their rights in small-dollar cases and expose individuals who post photographs, memes or videos to social media, or otherwise share protected content, without permission to the prospect of a civil judgment with no right to a jury or possibility of appeal. They would also designate some unauthorized public performances or displays of protected works as a felony.
The proposal for a new copyright “small claims” tribunal is intended to reduce the cost and difficulty of enforcing copyrights. “Right now if you feel I infringe your copyright, you basically have to go to federal court,” said Jonathan Band, a copyright expert in Washington, D.C., and an adjunct professor of law at Georgetown University. “You have to hire a lawyer, and it’s expensive.” The proposed CASE Act, Band said, would limit the claim value of disputes handled by the U.S. Copyright Office to those with statutory damages of $30,000 or less.
Under the proposed law, people who post protected works in violation of copyright may receive a claim of infringement from the rights owner that announces an intent to sue before the copyright office. The alleged infringer, who has a constitutional right to a jury in a copyright infringement civil lawsuit, would have a limited time in which to notify the copyright office that she or he wants to preserve that right and be sued only in federal court. “They can opt out and that would require the claimant, the person suing or filing the complaint, they would have to go through the traditional process and sue in court,” said Ernesto Falcon, senior legislative counsel at the Electronic Frontier Foundation. If the opt-out deadline is missed, the alleged infringer would be deemed to consent to having the infringement claim decided by copyright office personnel instead of a judge. “It’s kind of akin to making copyright claims akin to parking tickets,” Falcon explained. “You get your ticket, you can challenge it. If you don’t challenge it, you pay your fine.”
The risk is that copyright trolls, aided by lawyers who specialize in a volume-based practice focused on seeking infringement damages from unwitting sharers of media, will cause financial ruin to a huge number of Americans. “The only people who will end up in this ‘small claims court,’ on the defendants’ side, will be people who don’t know better, which are individuals being sued by trolls,” Band said. “They won’t know they’re better off not agreeing to the jurisdiction of this small claims tribunal.” Falcon said “sophisticated” infringers will know to take advantage of the opt-out provision and maintain their right to have a copyright claim decided in federal court. “Your less sophisticated individual is kind of screwed,” he said. “They’re going to be caught in a net and be forced to have to deal with paying a $30,000 fine for sharing a photo.”
Trolling is an attractive business because, in copyright cases, damages are ordinarily assessed on the basis of a statutory fixed amount as opposed to any economic harm suffered by the plaintiff. This means that, if infringement is proven, the infringer can be ordered to pay thousands of dollars even though that amount is not necessary to compensate the copyright owner. “There is not a single [copyright] lawsuit in the United States [where] actual damages was a thing sought. It is always statutory damages,” Falcon said. “That’s always much, much higher. Even $30,000 would probably be well above what the actual economic harm is and that’s what the proponents want. They want a fairly high price tag that would more than adequately compensate them for the harm.”
Those who might seek to profit from claiming copyright infringement have a large number of possible victims. Photo and meme sharing are extremely common on the internet. According to a report commissioned for Mylio.com in January, more than 1.4 trillion digital images will be taken this year. Hundreds of millions of photos are shared on social networks each day. Meanwhile, at least 1 million users share memes just on Instagram every day. “People have gotten accustomed to reproduction and distribution of copyrighted works in a way, especially with social media today, that feels normal,” Falcon said. “They don’t realize that it runs this fine line between fair use and [infringement].”
Another pitfall that may accompany the CASE Act, according to Band, is the likelihood that the complexity of copyright law may prevent speedy resolution of disputes even by the expedited copyright office process it would create. “Copyright is one of the most complicated areas of the law with all kinds of subtleties and gray areas,” he said. One way the drafters of the CORE Act have attempted to address that problem, Falcon said, is to limit the use of the most important defense available to alleged infringers — the fair use doctrine — in disputes before the proposed copyright office tribunal. “You have a means of bypassing traditional defenses, which are argued as things that slow down the system, but a person has a very important need to have those protections.”
The proposal to make unauthorized streaming of digital content a felony under the U.S. Code is an extension of existing law that already criminalizes violation of the reproduction and distribution rights. “The right holders have said ‘we want to make a public performance also subject to felony penalties,’” Band said. One concern is that, by doing so, Congress runs the risk of criminalizing useful and possibly legally fair uses of digital content. Band used the example of a music teacher to explain this possibility. “You want to make sure that a person like that isn’t potentially liable for felony penalties,” he said. “You might easily infringe 100 works or 1,000 works or, if the measure is how many people have seen it, well, it’s the Internet. It could be that 10,000 people saw your guitar lesson. The possibility of a person conceivably being subject to penalties is great.”
The lead sponsor of the felony streaming proposal, formally called the Protecting Lawful Streaming Act, said he intends to target only copyright pirates. “ Sen. Thom Tillis, R-N.C., said in a press release that the measure would “punish large-scale criminal streaming services that willfully and for commercial advantage or private financial gain offer to the public illicit services dedicated to illegally streaming copyrighted material.”
Band, who helped to negotiate the language of Tillis’ bill, is confident that it will not reach innocent users of digital content. “It has to be someone who is providing a streaming service,” he said. “It’s further narrowed in that the streaming service is using it only for unlawful streaming.”
— Hank Lacey