Senator Ron Wyden of Oregon stands behind programs and legislation that extend unemployment benefits, foster anti-racism efforts and support a comprehensive COVID-19 response. These are all commendable, but Senator Wyden continues to show one curious blind spot. Standing alone among his fellow Senators on both sides of the aisle, Wyden refuses to lift his hold on S. 1273, The Copyright Alternative in Small Claims Enforcement (CASE) Act.
In October 2019, the U.S. House of Representatives overwhelmingly passed the CASE Act 410-6. With only six dissenting votes and 155 co-sponsors on both sides of the aisle, the legislation garnered an extraordinary show of bipartisan support before being passed to the Senate for further action. The Senate version, S. 1273, is supported by groups from across the political spectrum, including the NAACP and the US Chamber of Commerce.
Trade associations representing creators of all stripes – photographers, lyricists, graphic designers, songwriters, musicians, and authors – also support the legislation, which would allow copyright holders to resolve infringement disputes with a value of under $30,000 before a small claims tribunal within the U.S. Copyright office, rather than bringing suit in U.S. Federal Court, a process that can cost nearly $400,000 to fully litigate, according to a recent American Intellectual Property Law Association Study.
Still, for reasons he has repeatedly declined to enumerate during more than 10 months of negotiations since the Senate Judiciary Committee voted to advance the Senate version of this important bill, Wyden maintains a legislative hold on the CASE Act, effectively thwarting its chances in the Senate despite more bipartisan support from, as of this writing, 20 Senate co-sponsors.
Wyden’s intransigence is just the latest example of his distaste for constitutionally mandated protections for intellectual property, so in that sense we’re not surprised by his actions. What is surprising is that Wyden fails to see the connection between protections for copyright holders, the overwhelming number of whom are small businesses and independent contractors, and the impact of the COVID-19 induced economic tailspin on creators’ earning potential.
What we see is a devastating one-two punch that has created an existential threat to an entire industry. While income from freelance work has all but dried up due to the pandemic, losses due to copyright infringements continue unabated and may have accelerated. Creators are left to wonder how their businesses will survive.
The stakes are high. The creative community contributes $1.3 trillion dollars annually to the nation’s gross domestic product and represents 5.7 million jobs, according to a report by the International Intellectual Property Alliance (IIPA). And the work produced by creators is one of the few sectors of the U.S. economy that actually maintains a trade surplus with the rest of the world. Without copyright protection for their work, the economic incentive for creators to produce that work evaporates, endangering a way of life that has been central to America’s cultural identity since its founding. Indeed, Article One of the Constitution gives Congress the power to pass laws that enable creators to protect their work and profit from it so society can benefit from advancements in the “useful arts and sciences.”
Senator Wyden knows all this. Yet he is blocking common sense legislation that if signed into law would provide creators with a simple, affordable, realistic small claims process as a means of enforcing their Constitutionally protected rights. Instead, for reasons known only to him, Wyden is putting the financial interests of corporations and businesses who knowingly, willfully, repeatedly and with impunity break the law ahead of an entire class of American citizens. One expects more from a U.S. Senator.
If Senator Wyden truly wants to protect small businesses from economic harm in the face of the COVID-19 pandemic, he should lift his hold on the CASE Act and allow it to proceed to final passage in the Senate.
Tom Kennedy was Director of Photography at the National Geographic Society from 1987 – 1997 and Executive Director of the American Society of Media Photographers from 2015 – 2020.
Charles Ledford is an Associate Professor of Journalism at the University of Illinois at Urbana-Champaign and an ex-officio member of the American Society of Media Photographers national board of directors.