Why is No One Talking About this Provision of the CASE Act? It’s Because It Benefits Users of Copyrighted Works

The Copyright Alternative in Small-Claims Enforcement Act of 2019 (the CASE Act), H.R. 2426 and S. 1273, a bill that would create an optional small claims tribunal within the U.S. Copyright Office, was introduced by Congress in May 2019. Before that, it had been introduced in different forms in prior Congresses as well. Over that time, and especially this year, just about every aspect of the bill has been held under a microscope, poked and prodded and discussed ad nauseum. There has been so much analysis and discussion of the provisions of the CASE Act that it’s hard to believe that there could possibly be some aspect of the bill that has gone unnoticed. But in fact, there is one aspect of the bill that has largely gone undiscussed. It’s time for that to change. But to do that we need to set the stage.

Ever since the Digital Millennium Copyright Act (DMCA) was passed, anti-copyright groups have been circulating horror stories about the DMCA notice and takedown process being used to harass users, suppress speech and remove material posted by users who have valid fair use defenses.[1] The DMCA includes provisions to protect against such misuse. One way that the DMCA protects against misuse is that it requires the sender of a DMCA takedown notice to assert under penalty of perjury that the material is infringing. Consequently, sending a takedown notice for the sole purpose of stifling speech opens that person up to a perjury charge. Another way the DMCA protects against misuse is found in Section 512(f) of the DMCA, which makes those who use the DMCA takedown process for the filing of false infringement claims liable for the damages suffered as well as for attorneys’ fees.

Anti-copyright groups like EFF, Public Knowledge and Engine counter that these protections are essentially ineffective because most of the recipients of takedown notices are individuals who do not have the money to sue in federal court [2] and because these recipients are often too afraid to file DMCA counter-notices because of the requirement in the DMCA that the counter-notice include a “statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located.…” [3] As a result, these groups argue that, despite the statutory protections and defenses afforded to recipients under the DMCA, the DMCA takedown process is being misused because users with meritorious fair use and misrepresentation claims are not able to avail themselves of them.

If only there were a solution for this—perhaps some legislation in Congress that might help address these concerns. In fact, there is and it’s called the CASE Act, a bill that would create an optional small claims tribunal to resolve the following types of claims by both copyright owners and users of copyrighted material:

  • claims of infringement brought by copyright owners;
  • declarations of non-infringement brought by users;
  • claims of misrepresentation of infringement in takedown notices under Section 512(f) of the DMCA brought by users;
  • claims of misrepresentation of infringement in counter-notices under Section 512(f) of the DMCA brought by copyright owners; and
  • counterclaims and legal and equitable defenses (like fair use) brought by any party.

In the corpus of articles and blogs about the CASE Act, the primary, if not sole, focus has been on claims of infringement that can be brought by copyright owners. Unfortunately, there has been little, if any, discussion about claims that can be brought by usersunder the CASE Act.

Regrettably, anti-copyright vigilantes like EFF, ReCreate and Public Knowledge that purport to represent the interests of users are so laser focused on their disdain for copyright and the CASE Act’s provisions that will help copyright owners that they have FAILED to apprise users about the bill’s provisions that are designed to specifically benefit them. Instead of educating their followers, these groups have filled their heads with fabricated nonsense about $30,000 fines for using a meme and having to fly from Hawaii to Washington DC for a small claims case. Heaven forbid that they tell their followers that they might benefit from the CASE Act, because then they might actually not re-tweet or email their representatives in Congress opposing the CASE Act, and instead they might actually (gasp) support it.

So how exactly would the CASE Act address these groups’ complaints about the DMCA?

Complaint #1: It is too costly for a user to challenge a cease and desist letter or DMCA takedown notice even when they have a meritorious defense.

These groups say that the high cost of litigation in the federal court system effectively prevents users from bringing declaratory action for noninfringement or DMCA misrepresentation claims against copyright owners. The CASE Act addresses these concerns by creating a low-cost, efficient, and streamlined way to resolve copyright infringement disputes that is accessible and affordable to individuals and small businesses and is a viable alternative to federal court. Here are a few ways that the CASE Act is much more affordable than federal court:

  • Attorneys’ Fees: The small claims process created by the CASE Act is simplified so that there is no need to hire an attorney. The largest cost associated with defending a copyright infringement case is the cost of hiring an attorney. In fact, the cost of hiring an attorney often exceeds the damages a user could obtain in a 512(f) misrepresentation case or a declaration of non-infringement action (since there would be no damages in such an action). Providing parties with the practical ability to defend themselves without paying tens of thousands of dollars (or more) to an attorney will enable users to bring claims (and defenses) that they cannot presently bring because of the high cost of doing so. If a party feels the need for legal representation, the CASE Act allows them to use the pro bono assistance of law students (supervised by a licensed attorney). The renowned copyright skeptic Larry Lessig famously argued fair use “is the right to hire a lawyer.” Once the CASE Act passes that statement will no longer be true (if it ever were).
  • Court Costs: The fees to file a claim with the CASE Act’s small claims tribunal will likely be lower than those charged to file the same claims in federal court.
  • Travel Costs: Unlike federal court, participation in the small claims process takes place remotely. There is no need to travel to the Copyright Office in Washington DC. The CASE Act explicitly states that proceedings “shall be conducted at the offices of the Copyright Claims Board without the requirement of in-person appearances by parties or others”and that each party will make its case “by means of written submissions, hearings, and conferences carried out through internet-based applications and other telecommunications facilities.” The ability to participate remotely in the proceedings without the need to travel to Washington DC is a significant cost savings relative to bringing a case in federal court (where remote participation is generally not permitted), to say nothing of the tremendous convenience of not having to travel away from one’s home or business.

What all this means is that users’ costs to bring misrepresentation claims or file a declaration of non-infringement action against the copyright owner or to defend themselves against copyright infringement claims under the CASE Act is affordable, accessible and manageable, which is a huge boon to users with meritorious claims.

Complaint #2: Users are too intimidated to file a DMCA counter-notice because to do so they must agree to be sued in federal court.

If, in fact, users with meritorious defenses or viable misrepresentation claims are not using the counter-notice process because they are intimidated by having to agree to litigate in federal court, the CASE Act provides an ideal alternative by allowing them to assert their claims and defenses without the complexity and trepidation they associate with federal court.

Complaint #3: The DMCA doesn’t give the parties time to explore alternatives to federal court litigation.

In comments filed with the U.S. Copyright Office, Engine, one of the groups that complained about the efficacy of the counter-notice process, said that one of the problems with the counter-notice process was that it “require[s] rights holders to proceed directly from notice to federal suit, with no time or ability to pursue mediation or other alternate dispute resolution.” [4] The CASE Act effectively does what Engine is asking for by establishing a process to resolve copyright infringement claims and defenses in a cost-effective, quick fashion, without proceeding directly to federal court.

In the event it still isn’t clear how the CASE Act would work in practice lets walk through an example of someone who posts a blog on Medium that contains an excerpt from a copyrighted news article belonging to someone else. The person who owns the copyright in the article sees the blog and believes that it infringes her rights, so she sends a takedown notice to Medium requesting that the blog be removed. The person who wrote and posted the blog believes that his use of the excerpt qualifies as a fair use and the blog should not be taken down, but he doesn’t have the money to hire an attorney to defend himself in federal court. And maybe the formality and complexity of defending himself in federal court scares the heck out of him. Under these circumstances perhaps filing a counter-notice doesn’t seem like a viable option to him. But there’s now another option. Instead of filing a counter-notice, he can file a declaration of non-infringement in the small claims tribunal created by the CASE Act. It’s affordable to him because he doesn’t need to hire an attorney to do it, and he can pursue the case from the comfort of his own home instead of traveling to a federal court located far away. This certainly seems like a good alternative.

While the CASE Act may not be a perfect solution to these and other problems, there is no doubt that it is a huge improvement over the status quo. It is the rare legislation that will benefit both copyright owners andusers by providing both of them with choices and alternatives that they do not enjoy today. If they don’t like what the CASE Act has to offer, they don’t have to use it because the small claims process is optional for all parties. But there certainly will be many owners and users who will view the CASE Act as providing a viable alternative for resolving copyright disputes and use it after it is enacted into law.

But users can never be supportive of the CASE Act if the groups they rely on for information hide or misrepresent the facts in order to quench their own anti-copyright goals (even if it means screwing their user constituents in the process). As long as EFF and other anti-copyright groups continue to use misdirection and deception, users will never have an accurate picture of the CASE Act. It’s about time users know the truth about the CASE Act and how it can benefit them. Instead of withholding this information from users, it’s important for users to know about these benefits so that they can decide for themselves whether the CASE Act may benefit them.

[1] In a report by the Electronic Frontier Foundation (EFF) dated October 27, 2014, EFF says “EFF has been contacted on numerous occasions by users who have had entire accounts suspended because of multiple bogus claims of copyright infringement.” In comments submitted to the U.S. Copyright Office pursuant to its 512 Study Engine explains that “deficient and fraudulent notices are commonplace.”During the section 512 roundtables held by the U.S. Copyright Office Fight for the Future (FFTF) said “there are a lot of people right now who are upset that the notice-and-takedown process under DMCA is being abused systematically and used to suppress free speech, fair use and lawful content on the internet.”

[2] For example, on page 7 of an EFF report they say that “Users also may fear the significant expense of defending even a winning copyright case, allowing themselves to be silenced rather than facing the expense and risk of vindicating their speech in courts.” (emphasis added); In a September 2015 blog post, Public Knowledge (PK) says states that “bringing a 512(f) case is still an expensive proposition” (emphasis added); In its comments submitted to the U.S. Copyright Office pursuant to its 512 Study Engine says “…the economic injury attributable to any individual takedown is unlikely to justify the costs of bringing a lawsuit under §512(f).” (emphasis added)

[3]17 USC 512(g)(3)(D). Examples of these statements include: an EFF report in which EFF says “many users are intimidated by the requirement that they agree to be sued in federal court if the rightsholder wants to claim copyright infringement”; In its additional comments submitted to the U.S. Copyright Office pursuant to its 512 Study Engine states that “§ 512(g)’s requirement that senders of counter-notices consent to jurisdiction where they are located and agree to accept service of process can be intimidating to many users. …Even users who strongly (and correctly) believe their use is fair or otherwise lawful may lack the legal sophistication to feel confident about making such a sworn commitment.”

[4] See Engine’s comments to the U.S. Copyright Office pursuant to its 512 Study.

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