How Those Memes You Just Posted Could Soon Cost You $30,000
You’re served with a notice. Apparently you’d shared some photos you didn’t own on the internet a while ago, and now someone–possibly an artist, possibly a copyright troll–can file for damages of up to $30,000. Scam, you think, and toss the paper. You’re served with a second paper 30 days later, but you toss that too.
Unfortunately for you, those copyright infringement proceedings were real, and you’d had 60 days to “opt-out” of them and go on about your day. But you didn’t opt-out, so you’ve automatically opted-in and waived your right to a trial by jury. Now a government entity unbeknownst to you–something called the Copyright Claims Board–has determined, without judge or jury, that you owe this person $30,000.
Now you have 90 days to file an appeal with a judge in federal district court, but the law behind this makes it extremely unlikely that the judge will rule in your favor, and anyway, you’ll probably need to hire an attorney. You’re on the hook.
This is a scenario, at least, which critics of the Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act) foresee. The bill passed the House last night and next moves to the Senate.
Who is this for?
Say you’re a professional illustrator, and you posted a drawing on Tumblr (a sloth, perhaps). Suddenly your drawing appears on a T-shirt you didn’t make in an Instagram ad for an artsy merch company. You issue a takedown notice, but the image resurfaces. You can’t afford the expenses (averaging $397,000, according to the Institute for Policy Innovation) to bring copyright litigation in federal court, and people keep printing T-shirts.
The CASE Act, sponsored by Democrat Hakeem Jeffries, would spare you the previously prohibitive costs by establishing an out-of-court tribunal under the Copyright Office to handle “small claims,” with no attorney required. The tribunal of experienced copyright lawyers could award damages of up to $15,000 for misuse of one copyrighted work and $30,000 for misuse of two or more works.
“People will still be able to pursue infringement cases in federal court, but this is for individuals who cannot afford that expense,” the National Press Photographers Association General Counsel Mickey Osterreicher told PetaPixel in May. “The small claims copyright tribunal may be a viable alternative when seeking a small licensing fee or [for photographers] wishing to represent themselves.” This week, the American Bar Association published an op-ed to the same effect.
Almost all CASE Act critics, including the ACLU–which has sent a letter to lawmakers clearly enumerating the bill’s problems–agree that artists need an alternative to the current copyright system.
Is an out-of-court tribunal unconstitutional?
Tribunals already exist; the Patent and Trademark Office’s Patent Trial and Appeal Board can revoke invalid patents. But in a paper published by the Berkeley Technology Law Journal, scholars point out that the Supreme Court has only ruled in favor of such tribunals for adjudicating “public” rights; that the status of copyright as a “public” or “private” issue is unclear.
The act also, arguably unconstitutionally, circumvents due process with its “opt-out” policy, which mandates that you’re automatically opted-in unless you heeded the notice and dismissed the proceedings.
Now that you’re on the hook, it’s near-impossible to appeal with a district federal court judge; you can only prove that the Copyright Claims Board engaged in misconduct, exceeded its authority, or that your missing the deadline was “excusable neglect.” You parse through the language of the CASE Act to figure out what qualifies as “