Controversial CASE Act Could Create Extrajudicial System for File-Sharers

A newly proposed bill called the CASE Act could create a whole new judicial system to make it easier to sue file-sharers.

There is newly proposed legislation in the US that is drawing criticism. It is called the CASE Act. It also is referred to the “small claims” bill. What the bill is proposing is to create a judicial system outside of the US court system. That court system would treat those accusing people of unauthorized file-sharing more favourably.

More specifically, the bill would give the copyright office the ability to issue subpoena’s on Internet users. It would also eliminate the requirement that a rightsholder would have to register their work before litigating. Also, it would allow the copyright office to issue $5,000 fines with no right to appeal.

While this is no doubt a boon for what many call “copyright trolls”, digital rights organizations are vehemently opposed to this. In an open letter, several people and organizations expressed their concern (PDF) about the legislation:

We are attorneys, engineers, and activists who defend Internet users—thousands of your constituents who use the Internet at home and work every day—against abusive legal threats. We write to express our grave concerns about the “Copyright Alternative in Small Claims Enforcement Act,” H.R. 3945 (the CASE Act). Though it’s well-intentioned, this bill would re-ignite the nationwide problem of copyright trolling, just as the federal courts are quelling this abusive practice.

Copyright trolls are plaintiffs who, in the words of a U.S. Magistrate Judge, file infringement lawsuits “as a profit-making scheme rather than as a deterrent.”1 These suits typically involve pornography or independent films that performed poorly. They “rely on poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers.” They use “the threat of statutory damages of up to $150,000 for a single download, tough talk, and technological doublespeak… to intimidate even innocent defendants into settling.”2 Some also use the stigma of being publicly associated with pornography downloads to coerce settlements. By targeting thousands of defendants at once and demanding cash settlements priced below the cost of a legal defense, copyright trolls can turn significant profit whether or not their claims would actually hold up in court.

We recognize that federal litigation can be expensive, making the pursuit of many small-dollar-value claims impractical for copyright holders. But we believe that much of that expense results from procedures that promote fairness, refined through decades of use. Creating a new, parallel system that allows copyright holders to dispense with those procedures invites abuse, especially given the Copyright Office’s institutional bias.

In attempting to solve a problem for some copyright holders, Congress must not create new incentives for unscrupulous litigation businesses to abuse and exploit ordinary Internet users. As advocates for your constituents, we ask you to oppose the CASE Act.

The Electronic Frontier Foundation (EFF), for it’s part, is also issuing their concerns:

The CASE Act is supported by photographers who want a faster, cheaper way to bring infringement claims. But creating a new federal administrative tribunal with the power to issue fines against ordinary Internet users is dangerous. Aid to photographers can’t come at the expense of inviting more copyright troll abuse. Legislators should heed the words of professionals who defend the public against this form of abuse. They should reject the CASE Act.

There is certainly a lot going on here. Obviously, the major players in the copyright industry have long bemoaned the inability to file mass lawsuits against file-sharers. Various court rulings have long said that if you are going to file a lawsuit, the alleged file-sharers should at least reside in the jurisdiction in question before proceeding. That rule ultimately killed the mass lawsuit campaigns where thousands of alleged file-sharers appeared in a single lawsuit.

Another issue long opposed by the industry is the fact that it costs money to file lawsuits against alleged file-sharers. In many countries, not just in the US, the industry has long sought the ability to file lawsuits at no cost to them. This bill appears to alleviate some of the costs of litigation so they can just randomly point the finger at anyone and sue.

Also, the industry has long used the flawed evidence that an IP address is enough to prove guilt. While they say it is a digital finger print, this low level evidence has lead to many innocent people receiving legal threats. With the lowering of legal costs, this could increase the number of innocent people receiving those threats.

At this stage, it is unclear what the odds are that this legislation will pass.

While the litigation campaign has shown no real progress in helping the industry, adapting the business model to suit modern times has shown to be hugely profitable. At this point in time, the industry admits that streaming is the biggest source of revenue. It’s unfortunate that while the solution is staring the industry right in the face, the industry still feels that litigation is the way to go almost in an effort to combat the future.

Drew Wilson on Twitter: @icecube85 and Google+.



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