Friday, November 22, 2019

CASE Act passes House, likely to pass Senate by end of 2019, would take some months for Copyright Office to implement




Wikipedia reports that the House of Representatives approved the CASE Act on a floor vote 410-6 on Monday, October 22, 2019 (I could say this happened while Washington was preoccupied with the World Series). Five Republicans and one Independent voted No. This law will set up an administrative "small claims court" at the US Copyright office with the power to subpoena defendants and issue awards up to $30000 for some infractions. 
  
  
It is expected that the Senate will pass it by the end of the year, but there could be Republican resistance, so it may be productive for content creators to weigh in. Still, lopsided votes (like we had with FOSTA) make it hard to assess how effective conventional activism by watchdogs really is. 

The Wikipedia article calls EFF and “anti-copyright group” and mentions the concern over the possibility of Righthaven-style copyright trolls.  A good question could be whether YouTube content-id could feed claims (when they don't result in takedowns). 
  
But the Copyright Office insists it will set up careful systems to prevent abuse, in this statement.
   
Small content creators could see it both ways.  It is hard to say, but they could be targeted by sweeps and trolls for “panorama” photos or copied text.  On the other hand, it could be argued that small creators could file claims, because smaller-business writers are often plagiarized (as I have been). This could even be significant in that there are other forces in play with some platforms to pressure content providers to prove they are commercially viable (an ironic observation now). 
   
The experience with the USPTO suggests that government agencies have a hard time dealing with trolling. But the court systems did finally pin down Righthaven around 2013.  As we know with the FTC oversight of COPPA, it is very difficult for administrative law agencies to tailor policies around abstract concepts that have very nuanced real world implications, and where literal interpretation of statute wording is difficult.

The Copyright Office would probably need comment periods and Federal Register publication of exact procedures before starting, and this might take close to a year.
  
I am in the DC area and I visited the office a few times when I was working on my first book.  I feel I have a little bit of familiarity.



Update:  Nov. 23

I see that the Verge has an article Oct. 22 by Makena Kelley.  Hoeg Law discusses the Verge story here and compares the risk of troll abuse to DMCA abuse today.  But he maintains we should improve the law, not avoid it just with friction. Again, the main risk for some users, especially bloggers with large backlogs, would be that some innocuous practice largely ignored in the past out of practicalities, is declared by the Copyright Office not to be covered by Fair Use and invite massive trolling.  Expect some controversies and comment periods in early 2020 after the Senate votes. Note the picture above, at Independence Ave and 1 ST SE, near the Supreme Court, near the South Capitol Metro stop, where the actual office for these "tribunals" is located. 

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