Imagine you are an influential nonprofit, well-funded by some of the world’s wealthiest companies, with the noble goal of “defending digital privacy, free speech, and innovation.” Congress has just come back into session after a lengthy hiatus. You have the resources to take up any issue you want, and boy, does the world need your help.
Lax internet laws have turned online platforms into incubators for threatening elections, destabilizing democracies, and rendering truth itself as subjective. Civil discourse is in tatters, massive internet corporations are creating a 1984-like surveillance state, and Facebook is refusing to fact-check the political ads that inform voters, and, in turn, shape society and government. Our children are still exposed to hate and misinformation on YouTube – with no solution in sight. And, piracy – one of the canaries in the dirty internet coalmine – is expected to rob the film and television industry of more than $50 billion in revenue by 2022. Oh, and did I mention that the largest internet platforms have overseen an exponential rise in child pornography and child exploitation?
An unbelievable flood of issues about what’s wrong with the internet are demanding your attention. So, which of these urgent problems will your nonprofit tackle first? How will you use your ample resources to bring real and positive change to the Wild West of the internet?
Well, if you’re the Electronic Frontier Foundation (EFF), which receives millions in funding from Google and other internet giants, you seize this moment by… attacking a bill designed to help creative people protect their copyrighted works in small claims court?
Uh, in a word: WHAT?!?!?!?
It’s difficult to believe, but it’s true. Earlier this month, the EFF sent an **ACTION ALERT** to their millions of followers as Congress returned from a two-week break, urging them to “call your representatives and tell them to vote ‘no’ on the CASE Act.”
And just this morning, with the Bill on its way to the House for a vote, they doubled down on this messaging by activating a Robocall and Spambot campaign mischaracterizing the CASE Act and ordering their supporters to call their Members of Congress to oppose it!
Here’s what they’re resisting so vehemently: The Copyright Alternative in Small-Claims Enforcement (CASE) Act is a proposed Bill to establish a Copyright Claims Board (CCB) within the U.S. Copyright Office to handle small copyright claims. The goal is to help creatives who can’t afford the expensive process of filing claims in federal court – a process that costs an average of $397,000 per case. Currently, these creatives – many of them individuals and small businesses – have very limited legal recourse when their rights are violated. The CASE Act will give them one that is streamlined, efficient, and affordable.
So, first of all, what the F, EFF? We know you have better things to do than fight a Bill like this – which, by the way, is completely voluntary to participate in, and has enjoyed almost universal bipartisan support. We’ll say that again – it’s voluntary. An alleged infringer can opt-out if a claim is filed against them.
But secondly, EFF, if you do insist on attacking legislation designed to do little more than help individual creatives, you should at least get your facts straight. Your “Action Alert” is riddled with misinformation and false claims – which, of course, is consistent with your long-standing anti-creativity advocacy, but still. Your pack of lies deserves unpacking.
YOU SAY: “[The CASE Act] creates an obscure, labyrinthine system that will be easy for the big players to find a way out of.”
WE SAY: Which “big players”? If someone has a big claim against a big player, why would they bother to bring it into a small claims system like the CCB, where the total damages a successful plaintiff can receive are limited to $30,000?
As copyright blogger David Newhoff recently pointed out, the “labyrinthine system” you decry is actually very simple:
“1) You receive a notice of a complaint in the mail from the [Copyright Claims Board (CCB)].
a) If you think the complaint might have merit—because yeah, you did sorta use that photo in an online ad without permission—you may wish to opt for resolution at the CCB. Check the box.
b) If you think the complaint does not have merit, or you want to insist upon adjudication in a federal court, you can opt out. Check the box.”
Well, EFF, only in a world where a “labyrinth” is a straight tunnel from start to finish could this system be called “labyrinthine.”
YOU SAY: “The only way out of this system would be to respond to the Copyright Office—in the specific manner it asks for – within 60 days of getting a notice.”
WE SAY: In a word, WHAT?!?!?!?
EFF, how much time do you think anyone needs to check a box? Do you think people are so wrapped up in the digital world that they’ve forgotten how a pen works? Fear not, we are here to help: Step 1, press the tip of the pen to the box. Step 2, move the pen in a check formation – do you see how ink lines are created when the pen is drawn across the paper? Step 3 – good work, your response is complete! Now, check your watch. Did that take 60 days?
YOU SAY: “Claims under the CASE Act would be heard by neither judges or juries, just “claims officers.” And it has a very limited ability for you to appeal, leaving you with whatever penalty the “claims board” decides you owe.
WE SAY: You use the phrase “claims officers” like they’re chosen in a random drawing. On the contrary, the Copyright Claims Board officers are to be appointed by the Library of Congress, selected specifically for their experience dealing with copyright issues. They will be representative of both copyright owners and users of copyrighted works. They will, unlike judges in federal courts, be selected primarily for their expertise in the subject of copyright.
From there, any monetary penalties issued for copyright infringement will be, as Newhoff puts it, “commensurate with the nature of the use and potential harm done” – and, as we noted, limited to $30,000 max.
That seems pretty reasonable to us, and exactly in line with how a judge or jury would mete out penalties, with one key difference – the board of experts assessing these fees has a much better day-to-day understanding of the impact of infringement and the damage it can cause, and can assess a fair payout accordingly.
Still don’t trust the decisions of these claims officers? Then don’t participate. Since we can’t seem to say it often enough, here’s one more reminder – all of this is voluntary. Anyone, creative or defendant, is absolutely free to bypass the CASE Act’s panel of copyright experts and deal with the federal court system as they do today. All you have to do is relearn how to use a pen and opt out.
YOU CONCLUDE WITH: “That’s why we’re asking you to take some time today to call and tell your representatives how ruinous that situation could be for regular Internet users.”
TO WHICH WE CONCLUDE WITH: It’s not at all clear in your Action Alert what the “ruinous” situation is that you claim will come to pass, but our hunch is that it has something to do with your ongoing efforts to foment fear that “regular” people who just want to share copyrighted images and videos on social media may face a copyright claim over it.
But this is fearmongering at its worst, and you know it. The world is on fire, EFF, and you’re wasting time and money trying to portray the CASE Act as an open door for copyright trolls with bad-faith claims – even though the Bill has a plethora of built-in safeguards against such behavior. Either you know this fact and are choosing to ignore it, or you truly haven’t read the Bill in its entirety. We’re betting on the first, and that’s shameful.
The CASE Act’s proposed Copyright Claims Board will have a mandate to not take on “frivolous” cases. They will have neither the time nor the resources to consider, say, a case regarding some mom’s video where her dog is singing harmony with the song of an independent singer/songwriter and sharing it with her 100 YouTube subscribers.
Now, let’s say the mom with the singing dog is running an ad-supported channel with 100,000 subscribers and likes to monetize her videos. If she’s pocketing some advertising revenue that’s made possible in large part by her use of that song – well that might be a case the CCB considers accepting. And the singer/songwriter who was never asked for permission? And who might not otherwise have any recourse here other than resorting to federal court? Well, they now will have a venue in which to protect their rights and financial interests – thanks to the CASE Act.
Ya know, EFF, it’s just incredibly difficult for us to figure out why you’re waging a cynical and dishonest campaign against a thoughtful, well-written, creative-friendly Bill that is 100% intended to help smaller creatives.
Ah, but then we remember… speaking of dogs, when it comes to copyright, you’re the loyal lapdog of internet behemoths like Google and Facebook. They don’t want anything messing with their revenue streams, and since they don’t care about the little guy anyway, they’re sic’ing EFF on them.
Here’s a suggestion, EFF. Go back to the top of this article. Look at that (abbreviated) list of some of the horrors of the internet, many of them facilitated by your benefactors. Put your resources into fixing them, rather than picking on small creatives, and get out of the way of the CASE Act.
In short, EFF off!