“Senator Wyden argues that copyright owners might use the system to harass lawful users of copyrighted content, but ample mechanisms exist in the bill to prevent such abuse—including fines, dismissals, and the potential to ban ‘trolls.’”
As the current pandemic eviscerates jobs throughout our economy, Congress has a rare opportunity to improve the lot of one long-besieged group of workers: creators. Authors, songwriters, photographers, artists, filmmakers, and many other creative professionals are the lifeblood of American cultural innovation. For decades, however, unfettered copyright infringement online has undermined their livelihoods. The effect is especially pronounced for “creative upstarts”—independent creators who rely on copyright income. Many creative upstarts report widespread piracy of their works but feel powerless to stop it. Now, Senator Ron Wyden (D-OR) seems intent on unilaterally terminating a bill that if passed would give indie creators—thousands of whom live in Wyden’s state of Oregon—much needed access to justice.
Unable to Enforce
For copyright law to work, the rights must be enforceable. Unlike big corporations, creative upstarts can rarely afford the high costs of enforcing their rights in federal court. State small claims court actions would greatly reduce the cost but are unavailable because federal courts have exclusive jurisdiction over copyright claims. Unable to enforce their rights, creative upstarts must perpetually suffer losses to piracy. Over the years, this grim reality has forced many to abandon their creative careers as their incomes have dwindled. Those creative upstarts embody an incredible range of diverse, underrepresented voices that fuel grassroots cultural innovation. The loss of such creative talent impoverishes our culture.
A Bipartisan Fix
Right now, Congress can fix this problem and offer much-needed support to creators by passing the Copyright Alternative in Small-Claims Enforcement (CASE) Act. This bill would create a voluntary, low-cost small claims system for copyright cases. The CASE Act provides for simplified procedures that the average person could navigate without an attorney, greatly reducing costs. The bill also contains a progressive feature critical for access to justice: cases would be handled remotely, further reducing the cost and burden for both parties. And the process is voluntary so each party can weigh for itself the pros and cons of participating.
The CASE Act has bipartisan support in both chambers of Congress and passed overwhelmingly in the House by a vote of 410–6. It’s rare to see that kind of unity in Congress these days. Ron Wyden is the only senator objecting to the bill and stands as its sole obstacle to becoming law. Senator Wyden is preventing the bill from coming to a vote and when pressed has offered poison pill amendments that would render the system toothless. Small creators deserve better.
The Criticisms Ring Hollow
The current bill is so well-tailored to its objective—helping indie creators enforce their rights without unduly burdening users—that it’s hard to see how anyone could object. Senator Wyden argues that copyright owners might use the system to harass lawful users of copyrighted content, but ample mechanisms exist in the bill to prevent such abuse—including fines, dismissals, and the potential to ban “trolls.” Other critics say the CASE Act would chill online speech. But such criticism—which is always copyright critics’ and big internet companies’ reflex response to copyright reform proposals—rings hollow given the bill’s carefully crafted anti-abuse provisions. And again, the CASE system would be voluntary; anyone objecting could opt out and revert to the federal court system.
Creators Are Suffering
Scholars recognize a crisis of access to justice in this country. The CASE Act is fair and balanced legislation that aims to help remedy that problem for creators. While we consume enormous amounts of content during lockdown, many creators are suffering as the pandemic obliterates their income from live experiences. It is time to give back to the talented individuals who make our cultural bounty possible. Senator Wyden should release his indefensible hold on the CASE Act and support independent creators.
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