Categories: copyright

CASE Act Threatens User Rights in the United States

This week, the House Judiciary Committee is expected to mark up the Copyright Alternative in Small Claims Enforcement (CASE) Act of 2019 (H.R. 2426). While the bill is designed to streamline the litigation process, it will impose severe costs upon users and the broader internet ecosystem. More specifically, the legislation would create a new administrative tribunal for claims with limited legal recourse for users, incentivizing copyright trolling and violating constitutional principles. Mozilla has always worked for copyright reform that supports businesses and internet users, and we believe that the CASE Act will stunt innovation and chill free expression online. With this in mind, we urge members to oppose passage of H.R. 2426.

First, the tribunal created by the legislation conflicts with well-established separation of powers principles and limits due process for potential defendants. Under the CASE Act, a new administrative board would be created within the Copyright Office to review claims of infringement. However, as Professor Pamela Samuelson and Kathryn Hashimoto of Berkeley Law point out, it is not clear that Congress has the authority under Article I of the Constitution to create this tribunal. Although Congress can create tribunals that adjudicate “public rights” matters between the government and others, the creation of a board to decide infringement disputes between two private parties would represent an overextension of its authority into an area traditionally governed by independent Article III courts.

Moreover, defendants subject to claims under the CASE Act will be funneled into this process with strictly limited avenues for appeal. The legislation establishes the tribunal as a default legal process for infringement claims–defendants will be forced into the process unless they explicitly opt-out. This implicitly places the burden on the user, and creates a more coercive model that will disadvantage defendants who are unfamiliar with the nuances of this new legal system. And if users have objections to the decision issued by the tribunal, the legislation severely restricts access to justice by limiting substantive court appeals to cases in which the board exceeded its authority; failed to render a final determination; or issued a determination as a result of fraud, corruption, or other misconduct.

While the board is supposed to be reserved for small claims, the tribunal is authorized to award damages of up to $30,000 per proceeding. For many people, this supposedly “small” amount would be enough to completely wipe out their household savings. Since the forum allows for statutory damages to be imposed, the plaintiff does not even have to show any actual harm before imposing potentially ruinous costs on the defendant.

These damages awards are completely out of place in what is being touted as a small claims tribunal. As Stan Adams of the Center for Democracy and Technology notes, awards as high as $30,000 exceed the maximum awards for small claims courts in 49 out of 50 states. In some cases, they would be ten times higher than the damages available in small claims court.

The bill also authorizes the Register of Copyrights to unilaterally establish a forum for claims of up to $5,000 to be decided by a singular Copyright Claims Officer, without any pre-established explicit due process protections for users. These amounts may seem negligible in the context of a copyright suit, where damages can reach up to $150,000, but nearly 40 percent of Americans cannot cover a $400 emergency today.

Finally, the CASE Act will give copyright trolls a favorable forum. In recent years, some unscrupulous actors made a business of threatening thousands of Internet users with copyright infringement suits. These suits are often based on flimsy, but potentially embarrassing, allegations of infringement of pornographic works. Courts have helped limit the worst impact of these campaigns by making sure the copyright owner presented evidence of a viable case before issuing subpoenas to identify Internet users. But the CASE Act will allow the Copyright Office to issue subpoenas with little to no process, potentially creating a cheap and easy way for copyright trolls to identify targets.

Ultimately, the CASE Act will create new problems for internet users and exacerbate existing challenges in the legal system. For these reasons, we ask members to oppose H.R. 2426.

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