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Even After Passage, EFF Keeps Spinning CASE Act Fictions

  • 03.06.2021
  • By CreativeFuture
CreativeFuture

If the staff of the Electronic Frontier Foundation (EFF) ever decide to quit their day jobs protecting Big Tech interests, we’d wager that they would have a bright future in fiction writing.

From creating alternate universes to building men out of straw, the Big Tech advocacy group seems to exist in a world quite unlike the one the rest of us inhabit.

As part of their ongoing tour outside of reality, their latest “Copyright for Internet Creators Town Hall” event left us, once again, scratching our heads.

Ostensibly a summary of recent events regarding copyright law, the virtual session quickly turned into an anti-copyright propaganda session, with the CASE (Copyright Alternative in Small-Claims Enforcement) Act as the panel’s primary punching bag.

But metaphorical punches land harder when they’re true, and EFF’s flimsy jabs were anything but.

To review, the CASE Act creates a tribunal for small-scale infringement claims so creative individuals and small businesses don’t have to go through expensive litigation in federal court to protect themselves against piracy. Damages are capped at $30,000, and participation is entirely voluntary.

First introduced in the House in 2016, the CASE Act was the subject of congressional discussion as far back as 2005, and was finally being signed into law in December 2020. Kicking things off in signature bad faith, the EFF began its town hall by pretending this 15-year legislative journey never happened. EFF Associate Director of Policy and Activism Katharine Trendacosta claimed that the CASE Act passed in 2020 “despite not having hearings” and “just suddenly appeared and became law.”

Here are some facts: the CASE Act had 1) not only been kicked around for over a decade and a half prior to passage but 2) was the recipient of a rigorous raft of expert analysis executed by the Copyright Office, including a two-year study, three rounds of public comments, a number of hearings across the country, and a report to Congress complete with proposed statutory language. Oh, and 3) there were additional hearings and bill introductions over the course of three Congresses; 4) a detailed markup of the legislation by the House Judiciary Committee; 5) a review of the legislation by the Senate Judiciary Committee; 6) a nearly unanimous 410-6 vote to pass the bill on the House floor all the way back in October of 2019; and 7) the EFF itself was aware enough of the legislation to have previously launched its own disingenuous critiques.

Wow, the damn thing just appeared out of nowhere, right, Katharine? Only if you haven’t been paying attention since George W. Bush was in his second term.

So after declaring their selective amnesia, the EFFers doubled down, replaying their anti-CASE Act greatest hits.

For instance, the panel raised the terrifying specter of “copyright trolls” abusing the system… ignoring that the CASE Act empowers the hearing tribunal to 1) reject any claim it wants to on the merits, 2) ban bad actors who repeatedly make improper claims for up to a year and dismiss all pending cases from said bad actors, and 3) award attorneys’ fees to the defendant for up to $5,000. What’s more, the opt-out power of the defendant is a built-in deterrent for trolls, because it potentially costs trolls money. Even though CASE Act claims are significantly cheaper to file than court claims, there are still filing fees involved. If a defendant opts out of a false claim from a troll, guess who loses their filing fee? That’s right, it’s that thing that looks like a monster and lives under a bridge.

But the panel didn’t stop there. EFF Staff Attorney Cara Gagliano also framed the (completely voluntary) tribunal system as a threat to Americans’ “right to a jury,” glossing over the fact that – once more with feeling, please – an alleged infringer has the complete right to opt out of CASE Act claims and divert the disputes to the ordinary federal court process if they so choose.

The whole point of the CASE Act, as the name suggests (“Copyright Alternative”), is to give both claimants and defendants an alternative to cumbersome and prohibitively expensive court litigation. Sometimes people just don’t want to deal with a jury, on either side, especially when we are talking about potential damages of less than $30,000.

The EFF’s deceitful, willfully ignorant attacks reached their nadir when Trendacosta said that those who do choose to opt out of copyright claims under the CASE Act, must repeat the opt-out process “every single time you get [a claim notice].” Her complaint, in essence, was that accused pirates cannot file a blanket opt-out form that excuses them from all future claims against them – looks like she wants the equivalent of a Presidential pardon within the small-claims copyright system.

Trendacosta failed to see the irony when, not long after, her fellow panelists pounced on proposed legislation to turn today’s feckless notice-and-take-down system into a notice-and-stay-down system, claiming such an arrangement would result in an avalanche of erroneous content removals.

So EFF has no problem with a legal system that forces copyright owners to file a new, cumbersome takedown form “every single time” they wish to “opt out” of being pirated… but we’re expected to light a candle for the poor pirates who, under the CASE Act, might have to file a response to each specific alleged act of infringement that might go to small claims court?

It’s sad, but true, that internet platforms have no incentive to keep pirated works permanently removed. That results in an endless game of Whac-A-Mole as creatives waste precious time and resources hunting down infringements and having them removed. In the fictious world EFF works so diligently to portray, the danger to society of red-herring villains such as copyright trolls outweighs the benefit of sound copyright legislation designed to give creatives a fighting chance at protecting their works within this online space where everything is stacked against them. To the EFF, a crime that costs the U.S. economy at least $29.2 billion and between 230,000 and 560,000 jobs each year is simply not worth fighting with stronger copyright laws.

Why does EFF keep barking into this void? The CASE Act has been signed into law, after all, and with nearly unanimous support from Congress. As early as December 27, 2021, the Copyright Claims Board will begin operations, giving creatives a new and affordable venue to uphold their copyrights.

Will EFF recognize that this horse they keep beating has, in fact, expired? Well, as Yogi Berra once said, it ain’t over till it’s over. Maybe the EFF thinks they have some kind of constitutional basis to challenge the law. Maybe they think they can rabble-rouse by their usual tactic of spreading misplaced fear and paranoia about any new policy that helps copyright owners protect their works online.

We’ll let the facts speak for themselves. We urge readers to do their own research. Read the actual CASE Act as well as supplemental pieces from actual copyright experts (and not the viewpoints of people who actively loathe copyright). And, as we near its official operational date, we suggest that you tune out the coming onslaught of misinformation from groups like the EFF.

Armed with information, we can stave off dishonest attacks on a law designed to help the creative industry’s most vulnerable members. The EFF may keep writing its alternative fiction about the CASE Act, but we hope we can close the book on this one soon and let the new system work.

This article was originally published in CreativeFuture