Late Tuesday night, Congress finally found the time to work out a modest covid-19 relief package that was tucked into a must-pass spending bill. Also included in the package was a pair of controversial copyright bills that will make the web a more dangerous place for sharing. What are you gonna do about it?
Americans have waited since March to get another round of aid from the federal government as coronavirus cases have exploded around the country and widespread unemployment has persisted. Businesses big and small have had to shut down while Senate Republicans rejected measures passed in the House, held hearings on a new U.S. Supreme Court justice, and haggled over providing immunity to corporations that negligently subject their employees to covid-19 infection. All the while, Americans were dealing with the most absurd presidential election in our history and trying not to get evicted. No one really had time to think about copyright legislation except industry lobbyist groups and the politicians looking to do such groups favors.
There’s no other reason that the Protecting Lawful 5 Streaming Act of 2020 and the CASE Act had to be included in this bloated 5,600-page omnibus bill. This was simply a moment when some politicians saw an opportunity to push through some crap that other politicians don’t care about. And with each bill garnering bipartisan sponsorship, it’s a preview of what’s to come as financial and health crises are set to suck up our attention for at least another year.
The CASE Act is the most urgent threat of the two bills, and internet freedom advocates fear that it’s a gift being handed on a silver platter to copyright trolls. The bill, which creates a kind of small claims court for copyright disputes overseen by newly created “claims officers,” has been in the works for years. The idea is that cases involving copyright disputes typically focus on big networks of pirates because the process of making a federal case in court is onerous, time-consuming, complex, and expensive. This new small claims court is intended to make it easier for, say, a musician to sue an individual for posting one of their tracks to a file-sharing network. In theory, a photographer could use the new board to sue an individual for posting a copyrighted photo on social media.
Earlier this month, when it became clear that the bill might get added to the must-pass spending package, the Electronic Frontier Foundation warned that “the CASE Act could mean Internet users facing $30,000 penalties for sharing a meme or making a video.”
The issue is that our copyright system is not very friendly to fair use principles, and a subjective review of fair use occurs on a case-by-case basis. When you couple that fact with industry groups like the RIAA and massive media conglomerates using aggressive legal tactics and automation to police copyright online, there’s a lot of room for harmless people to get caught up in a ruinous situation.
The small claims court does allow parties to opt-out of the process and elect to take their case to federal court, but that will likely be more expensive, and just getting legal advice on how to proceed will cost money that defendants don’t necessarily have.
“This version [of the CASE Act] is not an improvement, and Congress has not heard enough from those of us who would be most affected by CASE: regular, everyday Internet users who could end up owing thousands of dollars,” the EFF said. “Large, well-resourced players will not be affected, as they will have the resources to track notices and simply opt-out.”
On top of this is the streaming act, the most egregious example of a last-minute sneak attack. News of Senator Thom Tillis’s bill that would make streaming copyrighted material a felony first broke at the beginning of December, but there was no bill for the press or public to review. The text was finally made public on Dec. 10, and it wasn’t quite as bad as it sounded at first but still fell short of being perfect.
The bill makes streaming copyrighted content without the proper license for profit a felony. Public Knowledge, a non-profit tech policy group that reviewed Tillis’s bill while it was being developed, said of the final text that while it does “not see the need for further criminal penalties for copyright infringement,” the bill “is narrowly tailored and avoids criminalizing users, who may do nothing more than click on a link, or upload a file.” The group also doesn’t believe the bill will accidentally criminalize Twitch streamers who include an errant copyrighted work in the course of producing their content. But mistakes happen, and once again, there’s an opportunity for copyright trolls to make the lives of individuals miserable even if a plaintiff’s case fails in court.
“This is utter horse shit and Congressional leadership should be ashamed of themselves,” Evan Greer, deputy director of Fight for the Future, told Gizmodo. In a statement, the internet freedom advocacy group said, “these types of decisions should never be made in closed-door negotiations between politicians and industry or rushed through as part of some must-pass spending package.”
Things could’ve been worse. President Trump wanted to include a full repeal of Section 230 in this bill. That piece of legislation shields websites from some legal liability for content that’s generated by a third-party user. I repeat, Trump and some of his allies did not want to reform Section 23o, they wanted to repeal it with nothing to replace it. If the effort had been successful, social media companies and other platforms that carry third-party content would’ve had to implement swift and extreme limitations on uploads, and smaller startups would have no chance of surviving.
A web that’s built on free expression is looking increasingly endangered. Net neutrality is dead. Social media companies increase moderation tactics based on public and political pressure that’s fueled by a feeling that there are only a handful of monopolistic platforms available to the public. A weak antitrust system has sustained a feeling that monopolies are the way of the world and pleading with the platforms themselves is the only way to have a democratic voice. Meanwhile, imperfect automated moderation systems deployed by the platforms claim many victims who haven’t broken the law or violated a company’s terms of service. And automated copyright claim systems are deployed by rights-holders that flag content as a match the second they recognize a single musical note in common with a potential violator. Content ID filters are becoming a new frontier of censorship. And hey, look at that, just this morning, Sen. Thom Tillis introduced new draft legislation to “reform” the Digital Millennium Copyright Act.
The foundation of the web is being taken apart piecemeal with little regard for the potential consequences, and once again, what are you going to do about it? Americans need this stimulus package to put food on the table, no one’s going to say it should be vetoed. And we’re going to need more must-pass stimulus as soon as a month from now. The spending package passed the Senate with a vote of 92-6, and you can’t vote them all out. What other unrelated crap will be squished into future deals?