Another Zombie Bad Idea That Just Won’t Die: Copyright Small Claims Court Would Be A Free Speech Disaster

Going all the way back to 2012, we were highlighting why a copyright “small claims court” might be problematic. It’s been in discussion for a long, long time. There are some legitimate complaints from copyright holders that bringing a federal case is kind of expensive. But that’s because it should be expensive. When Congress got serious about this issue back in 2016, we wrote about how it would be a huge tool for copyright trolls. Earlier this year lawyer Cathy Gellis explained how the law was a total disaster, in that it was built with the assumption that all copyright claims are legitimate ones. But that’s a laughable claim — as copyright lawsuits (and threats of lawsuits) are quite frequently used either to just shake people down for money or as a way of suppressing free speech.

Make it even easier to sue over copyright, and you can bet that it will be used much more often — meaning with significantly more abuse.

We also had a guest post from lawyer Robert S. Schwartz, highlighting a very important point. One of the reasons why, historically, copyright law hasn’t been as big of a concern for suppressing free speech was because of copyright toleration. That is, even though basically everyone infringes on many people’s copyrights every single day, we’ve mostly “tolerated” many infringements, because common sense tells us that the law couldn’t have been meant for such things.

But, as we lower the barriers to filing a copyright lawsuit, we throw this “toleration” out the window, and, with it, we open the floodgates for censorship. Congress is, once again, considering creating a small claims court for copyright, HR 3945, or the CASE Act. The House Judiciary Committee held a hearing on the bill just last week, which mainly consisted of the same people saying the same things. You might have missed it, because it was happening at the same time as the Senate was holding it’s dog and pony show concerning Brett Kavanaugh.

As Katharine Trendacosta at EFF wrote last week, the concept behind this bill turns copyright and speech into speeding tickets:

…copyright claims should not be bulk-processed like traffic tickets—especially not when statutory damages under the CASE Act are so much higher than in traffic court, requiring no proof of actual harm. And especially not when the case won’t be heard by an actual judge, one whose job description doesn’t place copyright at the center of the legal universe.

During the hearing, proponents of the bill constantly pointed to the bill’s “opt-out” mechanism as the be-all, end-all answer to this problem. That argument very much misses the point. Proposed changes to CASE would add a second notice to be served to someone being accused of infringement under the new regime. That means the first notice to opt-out would look like spam and the second would like a legal summons, which people don’t traditionally have the option of opting out of.

The average person, faced with being served in the same way they would be for a real lawsuit, is not going to understand that they can opt out of this system. When people have enough trouble understanding how to challenge false DMCA notices, how are they going to know how to respond to a confusing summons from Washington, D.C.?

One of the participants at the hearing, CCIA’s Matt Schruers also highlighted how there’s no clear evidence that there’s some how a true “barrier” to filing copyright lawsuits today:

The idea that copyright plaintiffs are generally underserved by the existing remedies toolbox is somewhat difficult to reconcile with current data about copyright plaintiffs’ utilization of the federal court system. As I discussed with the Subcommittee in 2014, the statutory damages system has incentivized plaintiffs to inundate the federal litigation docket with instances of predatory enforcement, often referred to as copyright “trolling,” similar to the phenomenon of patent trolling. As one news publication noted, “[t]he existing digital copyright system has also led to claims of abuses, bizarre false positives, political censorship, and even fraud”. Some plaintiff misconduct that I identified in my 2014 testimony has led to criminal convictions.

Since we last discussed copyright remedies four years ago, these cases continue to clog federal courts. In 2014, I discussed the proliferation of multi-defendant John Doe complaints in federal copyright litigation, many of them involving pornography. At that time, recent research from Professor Matthew Sag found that these John Doe cases comprised the majority of copyright cases in over 20% of U.S. federal trial courts, and a third of federal copyright cases involved pornography. Today, the data shows that this problematic trend has continued. A 2018 article co-authored by Prof. Sag finds that John Doe suits by these serial litigants account for nearly half of all copyright cases filed in the U.S. from 2014 to 2016, including around 10,000 lawsuits, implicating hundreds of thousands of defendants,7 some wrongfully accused.

This is potentially a huge deal. While supporters of the bill keep insisting that this won’t have a huge impact, all of the evidence of how copyright law is already abused suggests otherwise. We live in a world where, every new piece of creative work since 1978 automatically gets a copyright. And, just as that was happening, the internet was growing and building a global network of connected computers, which basically are “copying” content all the time. Some of that is clearly unfair to the creators/copyright holders of those works. But much of it is purely innocent and harmless. And we’ve survived in that we let most of that go. But opening up a small claims effort will drastically change the equation, leading to much greater attempts to censor.

Unfortunately, many in Congress don’t seem to realize that this is already happening. As the EFF post notes:

Both some members of the House Judiciary Committee and entertainment industry witnesses during the hearing seem convinced that copyright trolls and the average small user who does not understand this process are “hypothetical.” Neither of these things is hypothetical. Lawsuits against individual Internet users alleging copyright infringement over BitTorrent networks—one of the most prolific types of copyright trolling—are just under half of all copyright lawsuits in the U.S. The plaintiffs in these cases pursue landlords and nursing home operators, elderly people with little or no knowledge of the Internet, and deployed military personnel. As is often the case in situations like these, the people hurt will not be major companies, but small businesses and individuals.

Copyright has long had an extremely uneasy balance with the First Amendment and free speech. The CASE Act and a small claims court for copyright would completely shift the way that balance works, massively tilting the scales away from free speech.

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