Fearmongering 101: An Examination of Fight for the Future’s Hackneyed and Dishonest Opposition to the CASE Act by Keith Kupferschmid
Back in 2015, the Illusions of More blog famously summarized the playbook for those opposing copyright in a blog titled A Guide to Critiquing Copyright in the Digital Age. Over the years, copyright opponents have continued to stick to the playbook, and as we entered the age where fake news is the new normal, they have begun to up the ante with even more preposterous headlines and fraudulent assertions.
So a big congratulations goes out to our friends at Fight for the Future (FFTF) for continuing the long tradition of misinformation and fearmongering in its recent campaign against the CASE Act.
Let’s walk through the playbook’s five points to see how FFTF did.
Step 1: Remind readers how cool it was when we killed SOPA.
Mission accomplished. FFTF might lose some points with the anti-copyright crowd for waiting until the second paragraph before mentioning SOPA, but they do get to it, saying: “The corporate interests pushing this bill through Congress are the same ones that created the SOPA/PIPA.”
Maybe it took a little while for FFTF to mention SOPA because the sentence is not true. The CASE act, which would create a small claims court in the U.S. Copyright Office, is about helping individual creators, like your local wedding photographer, author or songwriter, and small businesses who cannot afford the high cost of enforcing their copyrights in federal court. It is also for users of copyrighted works who have fair use claims and, like these small creators, cannot afford to defend themselves in federal court (FFTF left that last part out because it doesn’t want to admit that the CASE Act also benefits users too, because then users might not oppose it).
Big corporate interests do not need the CASE Act because they can afford federal court and high-priced attorneys to represent them. There would be no reason for them to use the small claims tribunal created by the CASE Act.
Step 2: Remind readers that all remedies to infringement are basically SOPA.
Check. However, unlike SOPA, nothing in the CASE Act expands the remedies under copyright law. In fact, the CASE Act actually LIMITS the remedies available under copyright law by capping damages for infringement at a maximum of $15,000 in statutory damages per claim. This figure pales in comparison to the $150,000 in statutory damages per claim available in federal court for copyright infringement.
The CASE Act only addresses remedies. It does not change substantive copyright law. Therefore, no one can be held liable under the CASE Act unless they have infringed a copyrighted work under existing law. If the use is a fair use (as is likely the case generally with memes) or de minimis, the poster or retweeter will not be liable.
It’s important to note that the small claims tribunal would not be untethered to reality. Under the CASE Act, the tribunal will only award damages commensurate with the harm to the copyright owner – generally measured in terms of lost sales or licensing fees. Many of the claims will be valued in the hundreds or low thousands of dollars, or for the types of infringements listed by FFTF, much less. In fact, the copyright owner would need endless resources to even consider chasing retweets or everyone who posted a photo. Thus, few – if any – cases of such low dollar value will ever be brought before the small claims tribunal.
In fact, if someone were to threaten a copyright infringement suit for use of a meme or some other use of a copyrighted work for which the person has a fair use defense, today the person being threatened would have no recourse and could not defend themselves (unless they could afford the hundreds of thousands of dollars it costs to defend themselves in federal court). However, once the CASE Act is enacted, that person could bring their own case against a copyright owner, arguing fair use, in the small claims court for minimal cost.
Step 3: Remind readers that the copyright industries hate the future.
Bulls-eye. FFTF takes on Hollywood here, saying that “a dangerous new bill called the Copyright Alternative in Small Claims Enforcement (CASE) Act is sailing through Congress to make it easier for everyone from trolls to Hollywood producers to sue you.” They later say: “You know their names: the Copyright Alliance. The Motion Picture Association of America. The Recording Industry Association of America. These corporate lobbyists are obsessed with locking down the Internet and making it easy to squeeze every cent out of you, even if that means enabling an army of copyright trolls along the way.” “Locking down the internet.” Sure sounds like the usual tired and erroneous “copyright industries hate the future” rhetoric.
Let’s take on the bogus “troll” claim first. The CASE Act will not enable an army of copyright trolls because it includes numerous safeguards to prevent “trolling.” In fact, there are more safeguards to prevent trolling abuse in the CASE Act than exist today under federal law. If someone were to engage in copyright trolling, the existing federal system would be a much more hospitable environment to do so than the small claims system established by the CASE Act.
The most important of these safeguards is that participation in the small claims process is completely optional. Interestingly, FFTF conveniently forgot to mention this KEY FACT. If a person thinks they are being sued by a troll they can opt out of the case, and the case disappears. How can someone be trolled when they can stop it by just saying “no.”
Other safeguards in the CASE Act to prevent trolling include:
- The Penalties for Bad Faith and Filing Frivolous Claims are Severe: Under the CASE Act, if a copyright owner is found to have brought claim(s) in bad faith, the Copyright Claims Board has the authority to not only dismiss the claim, but also to: (i) award attorneys’ fees to the alleged infringer of up to $5,000, or more in extraordinary circumstances; (ii) ban the troll from filing a case for one year; and (iii) dismiss ALL pending cases filed by the troll. These are substantial penalties, only the first of which is available when a case in filed in federal court.
- Damages are Capped: The small claims process is unfriendly to copyright trolls because it caps damages for infringement at 10% of what could be obtained in federal court. This cap would prevent trolls from making threats of massive, unpredictable copyright damages in an effort to extort cash settlements.
- The Copyright Office Can Limit the Number of Cases that Can be Brought: The CASE Act allows the Copyright Office to issue regulations preventing any one person or entity from bringing a certain number of cases in a year. Therefore, even if a troll could somehow abuse the system, the Copyright Office has the ability to limit or prevent that abuse. There is no such restriction on the number of cases that can be filed in federal court. Nor does the Copyright Office have the ability to limit the number of cases filed in federal court
- Trolls Who Try to Abuse the CASE Act Would Lose Money: When an infringer opts out, the troll loses the non-refundable filing fee. This system gives the accused infringer leverage (not the copyright owner), because if the copyright owner is a troll, they stand to lose money every time an accused party opts out.
In fact, if we assume for argument sake that there is a copyright trolling problem today, there is no doubt that the problem would be reduced by the CASE Act, not exacerbated. Currently, individual creators and small businesses cannot afford to defend their copyrights in federal court. So, when they are infringed, they are forced to use potentially unscrupulous attorneys who work on contingency fee agreements because they have no other option. Under the CASE Act, there would have another option and they would no longer be forced to use these unscrupulous attorneys.
These are all FACTS, ones that FFTF purposely FAILS to mention. Why? Because it’s not part of their playbook; and if they shared this information, readers wouldn’t click the “submit button” to complain to their legislators.
And, unfortunately, FFTF’s fearmongering doesn’t stop here. They also reference “Hollywood producers,” and say that the groups supporting the CASE Act include the Motion Picture Association of America. This is categorically wrong. As explained in more detail above, large companies and organizations do not need the CASE Act and are indifferent to whether it passes or not.
The Copyright Alliance is also on FFTF’s hit list. That’s because we represent nearly 2 million individual creators who create copyrighted works but have no means to enforce their rights when someone steals their stuff because they can’t afford the high cost of federal court. Nor can they afford to hire attorneys, and their infringement damages are relatively small.
Step 4: Make up some crazy shit.
As already explained, FFTF has checked this box numerous times by spreading completely false information. However, to be crystal clear, let’s walk through their main assertions once again:
– The bill is the second-coming of SOPA. WRONG
– There’s a $15,000 fine for posting a meme. WRONG
– The bill is a haven for copyright trolls. WRONG
– It’s supported by big corporate interests. WRONG
But wait, there’s more. FFTF says that there is “no chance of appeal” under the CASE Act. That is also incorrect. There is an appeals process and it tracks the judicial review provisions of the Federal Arbitration Act (FAA), permitting a party to challenge the enforceability of the CCB decision under certain circumstances.
At the end of the day, if there is anything about the CASE Act that an accused infringer doesn’t like – whether it’s the whole process or just one part of the process – they do NOT need to participate. They can opt out, and then it’s like the CASE Act never existed. Now that may sound like “crazy shit.” But unlike the shit that FFTF is serving up, this “crazy shit” is 100% true.
Step 5: Write a misleading headline
Check. FFTF’s headline reads: “That meme you shared? It may soon cost you $15,000.” Since just about everyone uses meme’s on social media, this misrepresentation is a tremendously effective scare tactic to rile up Joe Everyman and Janet Everywoman.
However, it does not have an ounce of truth to it. But why let facts get in the way of a good, scary headline designed to trick readers into believing total nonsense.
I understand why FFTF is opposed to the CASE Act. Like similar astroturf groups, they don’t like copyright and want to see it disappear. As a result, they oppose any legislation that would help creators and the creative community. While I understand that is their viewpoint, one that I completely disagree with it, FFTF is certainly entitled to their views. But what I have a problem with is their hyperbolic fearmongering by calculatedly spreading misinformation and omitting important facts about the CASE Act in order to achieve their dubious goals.
I have been working in the copyright policy space for many years, representing copyright owners and users and just about everyone in between. During that time, I have worked with and against serious critics of copyright who make an effort to understand the issues and provide thoughtful analysis and/or criticisms. I may not agree with those groups, but I respect them and their views because they do not carelessly misstate the law.
Then there are the other groups. Those that barely have a point of view and that are in the business of scaring people to maintain their relevance (and perhaps their funding). It’s often unclear who they actually represent and who is funding them. They remind me of the enforcers on a hockey team who are on the roster for the sole purpose of responding aggressively and violently against the opposing team. There can be no doubt that FFTF fits into the enforcer category. Unfortunately, these days there are many more “enforcers” than serious critics, and that is disheartening and makes it virtually impossible to have a constructive discussion about copyright policy.
Just once I’d like to see FFTF and its cronies cast aside their roles as enforcers and not trot out the tired five-step playbook for opposing copyright, and instead argue the actual facts in a spirited and honest debate. Of course, FFTP hasn’t taken that approach here because they know that’s a losing proposition; and if they did go that route, instead of letters of opposition being sent to members of congress, their constituents would be sending letters of support for the CASE Act.