“When a bill has overwhelming bipartisan support, the public is right to demand that Senator Wyden explain, in very clear terms, why he alone believes he knows better.”
Under Rule VII of the Rules of the Senate, bills can only move forward by unanimous consent. Consequently, a single senator may place a “hold” on a bill to keep it from passing. In principle, the rule exists to ensure that any senator may suspend the legislative process in order to review and research a proposal, particularly in cases where his or her state has a keen interest. In practice, of course, senate holds are wielded like one-man filibusters that often mask ulterior motives. Holds are meant to be contemplative pause buttons, not kill switches.
The Need for the CASE Act
Since last September, Senator Ron Wyden (D-OR) has maintained a hold on the small-claim copyright provision known as the CASE Act. This bill would create a voluntary, small-claim tribunal conducted by a newly created Copyright Claims Board (CCB) at the U.S. Copyright Office. Its principles have been in development for more than a decade, and it was designed to offer independent creators a remedy for small-claim infringements without enduring the cost and burden of federal lawsuits. The need for a small-claim provision has grown along with the steady rise in infringements, due primarily to the ease of “grabbing” material from the internet.
The archetypal example of a potential small-claim matter would be the commercial user who copies a photo off the web to use in an advertisement, and thus deprives the photographer of her licensing fee, while leaving her few avenues for remedy other than expensive litigation. The CCB is designed as an alternative dispute resolution forum to which both parties must volunteer. Further, we have seen several examples of federal litigation in recent years in which the CCB would plausibly have offered a cheaper and simpler resolution for defendants as well as plaintiffs.
Held Up by Hypotheticals
The CASE Act passed the House (410-6), and Sen. Wyden is now the lone holdout preventing the bill from moving forward in the Senate. His reasons are neither nuanced nor original nor well-founded. Thus far, he has merely parroted a tech-industry narrative in which “grandma” (that iconic bumbler of the internet) may find herself on the receiving end of a $30,000 fine for a copyright infringement she had no idea she committed. Without delving into any details, Sen. Wyden merely bestows his imprimatur upon generalized and hypothetical abuses that would, in fact, be rather difficult to conduct under the provisions of the CASE Act.
The senator does not acknowledge the anti-abuse provisions written into CASE. With his vague allusions to “grandma,” he avoids resolving the dichotomy, for instance, that it is awfully hard to mete out injustice to a respondent who must volunteer for her own abuse. After nearly a year since his hold, the senator has yet to offer a thorough answer as to why anti-abuse provisions, like $5,000 fines or the USCO’s discretion to deny unmeritorious claims and sanction those who repeatedly file them, are not sufficient protections. Instead, Sen. Wyden’s only substantive response has been a poison pill—a proposal to lower the maximum damage award at the CCB so drastically that it would nullify the CASE provision as an enforcement alternative.
Debate is a good thing. But under Rule VII, a senator is not required to debate or even clearly explain him or herself, especially in instances where a bill does not garner much national attention. A senator can hold up legislation indefinitely and decline to respond to the voters who demand to know the purpose of the intransigence. When Senator Wyden’s only explanations are vague, hypothetical, and apparently unseen by the vast majority of Congress, constituents are justified in assuming that prejudice, rather than reason, is the senator’s only motive. And given his long history of antagonism toward copyright enforcement (and fealty to the tech industry), America’s entrepreneurial creators can only conclude that he does not care about their interests, despite claims to the contrary.
Explain or Stand Down
When a bill has overwhelming bipartisan support, the public is right to demand that Senator Wyden explain, in very clear terms, why he alone believes he knows better. And then, if he cannot convince either his colleagues or the American people (or ideally both) of the merits in his opposition, he should stand instead for democracy and have the integrity to stand down.