U.S. House of Representatives Approve of “Anti-Meme” CASE Act

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On October 22nd, the United States House of Representatives voted 410 votes to 6 (16 abstained) in favor of the CASE Act- dubbed the “Anti-Meme law” by its critics.

The “Copyright Alternative in Small-Claims Enforcement Act of 2019” was introduced by Representative Hakeem Jeffries (Democrat, New York) on January 5th, 2019. The bill’s purpose was to help content creators utilize a small claims court for copyright infringement, as the current law means copyright disputes must go through the more expensive federal courts.

This would create a Copyright Office who would have a tribunal of “Copyright Claims Officers” to work with both parties in an infringement lawsuit . Damages would be $15,000 at maximum for each infringed work, and a total of $30,000.

Speaking with The Verge, Jeffries stated “The internet has provided many benefits to society. It is a wonderful thing, but it cannot be allowed to function as if it is the Wild West with absolutely no rules. We have seen that there are bad actors throughout society and the world who take advantage of the internet as a platform in a variety of ways. We cannot allow it.”

The bill has been criticized by some, fearing it will result in prosecution of people simply creating or sharing memes, creating parodies, reviews, and other forms of transformative works. The American Civil Liberties Union (ACLU) wrote to the committee on September 10th, stating their fears and the claim the CASE act will result in false or abusive claims like the DMCA (Digital Millennium Copyright Act).

“However, we believe that changes are needed to ensure adequate safeguards for due process and the protection of the freedom of speech.

Any system to enable easier enforcement of copyrights runs the risk of creating a chilling effect with respect to speech online. Section 512 of the Digital Millennium Copyright Act (DMCA) provides an instructive example of the ways in which a well-intentioned system for enforcing copyrights that nevertheless fails to build in adequate safeguards may harm the freedom of speech. Section 512 creates a notice-and-takedown procedure that allows rights holders to
require online service providers to quickly remove content after notification of infringement. In practice, that process has often been abused, with studies showing that many DMCA notices are meritless. Meanwhile, counter-notices to defend against DMCA takedowns and require content be reposted are exceedingly rare, possibly due to structural limitations and risks associated with using a counter-notice. Therefore, many DMCA takedowns involve legal and legitimate content that should never have been removed. The ease of filing a DMCA takedown notice, coupled with the difficulties in defending against a claim of infringement, have led to less speech online.

The CASE Act’s new enforcement system will create similar risks of chilling speech by increasing the number of copyright infringement claims that will be brought. Many of these cases will be legitimate. However, some will not, and others, even if brought in good faith, may be defensible as fair use or for some other permissible reason. If legally
unsophisticated people are drawn into the CCB process, with the possibility of being liable for $30,000 in damages, they may be forced to settle rather than risk far greater liability, even if they had not infringed. Given the complex and fact-intensive nature of copyright claims and defenses, the design of a system to make copyrights easier to enforce must be carefully balanced, not only to permit rights holders to enforce their legitimate claims, but to protect the free exchange of information that has become essential to modern American life. To that end, there are a few ways in which the CASE Act could be improved to protect free speech and due process rights.”

The letter continues, arguing for additional safeguards to ensure voluntary participation, and that available damages should be further limited.

The Electronic Frontier Federation (EFF) Senior Legislative Counsel Ernesto Falcon shared his concerns on October 21st.

“Supporters of the bill insist there’s no problem, because $30,000 isn’t that much money. They even laughed about it. We know the reality: when nearly half of this country would struggle to afford an emergency $400 expense, the penalties in this bill are deadly serious. What’s worse, they’ll be imposed not by an experienced judge, but instead by a committee of unaccountable bureaucrats.

The CASE Act creates a new tribunal separate from the federal judiciary (this is part of the constitutional problem) and places it within the Copyright Office. This agency has a sad history of industry capture, and often takes its cues from major content companies as opposed to average Americans. The new tribunals will receive complaints from rightsholders (anyone that has taken a photo, video, or written something) and will issue a “notice” to the party being sued.

We don’t actually know what this notice will look like. It could be an email, a text message, a phone call with voice mail, or a letter in the mail. Once the notice goes out, the targeted user has to respond within a tight deadline. Fail to respond in time means you’ll automatically lose, and are on the hook for $30,000. That’s why EFF is concerned that this law will easily be abused by copyright trolls. The trolls will cast a wide net, in hopes of catching Internet users unaware. Corporations with lawyers will be able to avoid all this, because they’ll have paid employees in charge of opting out of the CASE Act. But regular Americans with kids, jobs, and other real-life obligations could easily miss those notices, and lose out.”

Falcon also expressed his concern that how under the current law “if you copy a work that isn’t registered—meaning, the vast majority of things that are shared by users every single day—you’re only on the hook for the copyright owner’s actual economic loss. This is called “actual damages,” and very often, it’s $0. Under CASE, however, every copyrighted work will automatically eligible for $30,000 in damages—whether or not the owner has bothered to register it.”

Speaking with The Verge, Jeffries claims those concerns are misrepresented, and that the small claims court needed both parties to consent proceeding under that “option.”

“There is no gun that is being held to anyone’s head, because the small claims court like tribunal is voluntary in nature. Any argument made to the contrary, represents a deliberate attempt to misrepresent what’s at stake as part of the effort to do away with the content copyright laws that have been part of the fabric of our democracy since the founding of the Republic and in fact the Constitution. The internet doesn’t change the Constitution.”

The proposed bill has similar concern to Europe’s Article 11 and 13, both heavily criticized for using A.I algorithms to detect copyright infringement, and even taxing posting a hyperlink. The US’ DARPA is also developing AI to detect “deep-fake” videos and audio, though  some have expressed concern even memes not intended to deceive (i.e. parody) would be at risk.

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Ryan was a former Niche Gamer contributor.

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