Congress is currently considering legislation that would allow copyright holders to bring smaller cases defending their works from copyright infringers without some of the prohibitive costs of going to federal court. It’s a smart idea that many in the creative community have made clear is long overdue. At the ACLU, we agree. However, the specific legislation Congress has drawn up to achieve this – the Copyright Alternative in Small-Claims Enforcement Act (CASE Act) — has significant design flaws that undermine free speech online and our due process rights. We’re urging lawmakers to make some changes to reform the bill’s deficiencies while preserving its rightful intention.
The current proposal creates a new government body, the Copyright Claims Board (CCB), within the U.S. Copyright Office, to resolve certain copyright claims and counterclaims. The board, however, is being handed far too much power without proper oversight. As currently constructed, CCB would have the last and final word for nearly all cases and neither the copyright holder nor the alleged infringer could appeal the board’s decision in court, except in very limited circumstances.
The last thing Congress should be doing right now is giving yet another government body broad powers to operate without proper judicial oversight. The system will be abused, and CCB will make mistakes. Individuals fairly using copyrighted work, or those using it unknowingly — like kids posting videos of themselves on YouTube dancing to the latest Cardi B song — could be forced to pay up to $30,000 for those mistakes.
What makes the CCB’s nearly unreviewable authority even more troubling is that the board will inevitably be faced with tough questions about what is infringement, what is fair use, and what is protected speech. These questions should not be left to the sole discretion of one government office, especially when those affected could include every Internet user who has ever shared an article or a photo without knowing whether they had proper permission or posted a video of themselves singing along to the latest pop song. With no court to correct the board’s mistakes, the First Amendment will suffer.
Section 512 of the Digital Millennium Copyright Act (DMCA) provides a cautionary example of a law intended to protect copyrights that has resulted in the censorship of non-infringing speech. Congress created a notice-and-takedown procedure that allows individuals to require online service providers to quickly remove their copyrighted content after notification of infringement. Due to insufficient safeguards, the procedure has been repeatedly abused to censor critical speech, as the Electronic Frontier Foundation has detailed.
Producers of a Nazi romance movie leveraged the DMCA to take down criticism of the movie. Journalists revealed that the government of Ecuador abused the DMCA to silence criticism of President Rafael Correa. Artist Jonathan McIntosh’s remix video “Buffy vs. Edward: Twilight Remixed” —a critique of the gender politics in the popular motion picture trilogy—was removed after a DMCA takedown notice. It took three months before the film studio claiming infringement relented.
In the case of the DMCA, alleged misuse means censorship. But the legislation currently under consideration increases the stakes. Speech alleged to be infringing wouldn’t just be censored — it could result in a $30,000 penalty. That’s enough to bankrupt the average American household.
Moreover, the legislation bases CCB’s enforcement system on opt-out consent. If you fail to opt out for any reason, you forfeit your right to a jury trial and are bound by the decision the CCB reaches. If a default judgment results, you could be on the hook for $30,000 in damages even if you fairly used the copyrighted work. Additionally, an opt-out regime fails to meaningfully address repeat infringers and sophisticated respondents. They will know enough to opt-out, knowing many of the individual artists the bill is intended to help will not follow up with a lawsuit. Meanwhile, regular Internet users will be subject to the system.
We welcome and support the goal of removing some of the barriers that prevent rights holders from protecting their copyrighted works, but Congress first needs to amend the bill to ensure there are proper safeguards to protect the freedom of speech and due process. Any small claims process for copyrights must be procedurally fair to both sides of a dispute, ensuring access to meaningful judicial review at a minimum. And the penalty shouldn’t threaten to leave families bankrupt. Only then can this legislation live up to its commendable intentions.
Kate Ruane is ACLU senior legislative counsel.