The fears have become reality. The CASE Act (and the felony streaming provisions) have made it into the “must pass” NDAA.
It’s been heavily fought and feared, but we are learning that after several failed attempts, lawmakers have slapped the CASE Act into the National Defense Authorization Act (NDAA). The NDAA is a “must pass” bill that essentially funds the countries military. This generally makes the bill ripe for abuse because lawmakers can attach bills no one wants into it. In turn, they can pass anything they want without proper oversight or debate.
While slapping unwanted provisions of legislation into the NDAA isn’t anything new, this years NDAA is troubling for anyone who believes in half reasonable copyright laws. As we pointed out during the previous round of debates with this law, the CASE Act essentially creates a special “copyright court” for infringers. It is a (likely unconstitutional) theory that copyright laws can be wrestled out of the hands of judges and placed into the hands of bureaucrats.
This legislation is heavily fought for by big corporate interests in the music and movie industry. It has quite a bit of history attached to it. Back in the days where Kazaa, Limewire, and eDonkey2000 were the file-sharing programs that reigned supreme, major record labels decided to try and put the genie back in the bottle by mass litigating their fans. The goal was to sue as many people as possible with as little evidence as possible. This gave rise to the famous “rounds” of lawsuits where tens of thousands of lawsuits were announced against alleged file-sharers.
One of the big goals was to get people to give up this silly fad called “the Internet” and go back to the previous era of going to a physical record store and buy up the music in the store via physical copies. Obviously, that era came to an end long ago, but major record labels were bent on turning back the hands of time come hell or high water. Another aspect, though, is the fact that lawsuits were about turning the legal system into the major corporations personal ATM. Need a few thousand extra dollars, just sue some random people and the “justice” system will hand you a blank check.
As time went on, problems began to emerge with this. Lawsuits were being filed in courts that have no jurisdiction over the alleged offender. The pure volume of lawsuits were also threatening to overwhelm the system and judges began growing increasingly agitated that the corporations were trying to abuse the system. Ultimately, limits were put in place. The lawsuits had to show that the court would have jurisdiction rather than the corporations simply shopping around for the court that would best suit their interests. In addition to that, there are limits to how much can be demanded in a lawsuit in the first place.
While the ISPs and labels eventually decided to implement a multi-strike warning system, such a system isn’t exactly profitable. So, if the never-ending ATM was going to return, something needed to happen to circumvent the court system. That’s partly how we got here with the CASE Act. The bill is being sold as a “small claims” court capable of handing out small speeding ticket like fines to people. As a result, it’s supposed to reduce the legal congestion in the real court system.
Of course, as many point out, the bills backers are being misleading by calling it a “small” claims court. What the legislation means by “small” is $30,000. This is basically a year or more worth of pay in one shot for a lot of people out there. Not exactly “small” by any means. As the Electronic Frontier Foundation (EFF) points out, such an amount is ruinous for many American’s struggling to get by – especially in this day and age. From the EFF:
As we feared, the “Copyright Alternative in Small-Claims Enforcement Act”—the CASE Act—that we’ve been fighting in various forms for two years has been included in a “must-pass” spending bill. This new legislation means Internet users could face up to $30,000 in penalties for sharing a meme or making a video, with liability determined not by neutral judges but by biased bureaucrats.
The CASE Act is supposed to be a solution to the complicated problem of online copyright infringement. In reality, it creates a system that will harm everyday users who, unlike the big players, won’t have the time and capacity to negotiate this new bureaucracy. In essence, it creates a new “Copyright Claims Board” in the Copyright Office that will be empowered to adjudicate copyright infringement claims, unless the accused received a notice, recognizes what it means, and opts out—in a very specific manner, within a limited time period. The Board will be staffed by “claims officers,” not judges or juries. You can appeal their rulings, but only on a limited basis, so you may be stuck with whatever amount the “claims board” decides you owe. Large, well-resourced players will not be affected, as they will have the resources to track notices and simply refuse to participate. The rest of us? We’ll be on the hook.
The organization goes on to mention how the felony streaming legislation is also part of this legislation and concludes with the following:
Internet users and innovators, as well as the basic legal norms that have supported online expression for decades, are under attack. With your help, we will be continuing to fight back, as we have for thirty years, into 2021 and beyond. Fair use has a posse, and we hope you’ll join it.
The felony streaming legislation is a massive expansion into Internet censorship. It mandates that not only is streaming “protected” content is illegal, but a criminal offense. From the Techdirt:
The key bit is this:
PROHIBITED ACT.—It shall be unlawful to willfully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service that
‘‘(1) is primarily designed or provided for the purpose of publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law;
‘‘(2) has no commercially significant purpose or use other than to publicly perform works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; or
‘‘(3) is intentionally marketed by or at the direction of that person to promote its use in publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law.
To some extent, the thinking behind this bill is that it’s focused on a very specific set of circumstances. There have been websites out there that stream content they host, and those already faced felony charges for the hosting — but this seems to extend that to sites that stream the content that is hosted elsewhere. Of course, there is a much bigger question of why is this a criminal issue in the first place? It is yet another example of Hollywood trying to pass off what should be a civil issue, where the movie studios and record labels have every right and ability to sue these companies in court, and turn them into an issue that the US taxpayer now has to deal with? It’s basically a giant subsidy to Hollywood, taking a private dispute and putting it on the public dime.
As Public Knowledge says in its response to the bill’s release, “we do not see the need for further criminal penalties for copyright infringement.” Indeed.
The end result is that this bill is not as horrific as past felony streaming bills, and is, in fact, narrowly tailored. However, that does not change the fact that moving copyright issues away from civil disputes to be handled by copyright holders, to the federal government, is something that we should not support. Indeed, it should be seen as somewhat odd that a Trump-supporting Republican, who claims to be for keeping government out of business, is directly subsidizing Hollywood by having the federal government and US taxpayers take over their own civil legal dispute by turning them into criminal issues.
Another point to be made here is that it’s quite hipocritical of lawmakers to be doing all of this in the first place. Specifically, outgoing president, Donald Trump said that if he didn’t get to kill Section 230, then he would veto the NDAA. Lawmakers responded by saying that the NDAA is no place to discuss Internet related issues. Yet, here we are, seeing not one, but two pieces of copyright legislation being shoved into the NDAA. So, on the one hand, when Trump wants to wreck the Internet, the NDAA is no place to do so. On the other hand, if Hollywood wants to wreck the Internet, that is somehow perfectly OK?
At any rate, hopefully these pieces of legislation get smacked down somewhere along the line. We knew it was a long shot to get lawmakers to keep this out of the NDAA. Now, preventing this legislation from entering the legislation is no longer an option. With the NDAA destined to pass, the next steps for digital rights is to try and undo the damage that it’s going to cause – ideally by going to the root of it and getting the law nullified in some manner.
Drew Wilson on Twitter: @icecube85 and Facebook.
