US Congress passes a COVID-19 relief bill—and also some new copyright laws

US Congress passes a COVID-19 relief bill—and also some new copyright laws

US Congress didn’t simply approve a $600-per-person COVID-19 relief package, unemployment aid, rental assistance, and other acts related to the coronavirus pandemic today. It voted to pass a paired government funding plan that includes thousands of pages of legislation unrelated to COVID-19, including some important changes to copyright law. 

The change most relevant to you, someone who uses the internet, comes in an act called CASE, but I’ll start with a different copyright-related part of the package, because it’s being misunderstood by some. There’s a section from Republican Senator Thom Tillis which defines a felony for operating a service dedicated to providing illegal streams, and I’ve seen this described as something that will “make illegal streaming a felony” in general—as in, “you can go to jail for streaming Nintendo games on Twitch.” That’s not really what it says.

What that felony streaming law is all about

If you’ve seen panicked posts on social media claiming everyone’s going to be arrested for putting Dua Lipa tracks behind their Twitch streams, you can rest easy. While the entertainment industry (parts of it, at least) can find interesting ways to exploit any new law, the letter of the Tillis law does not target individuals who are streaming on Twitch, YouTube, or other big streaming services, even if they’re streaming copyrighted stuff without a license. It only targets, and the wording is quite explicit about this, people who provide a streaming service that is solely dedicated to making money off of streaming copyrighted stuff without a license.

Specifically, to be convicted under this law you’d have to be shown to “offer or provide” a “digital transmission service” that’s “primarily designed or provided for” streaming unlicensed material and which “has no commercially significant purpose” beyond streaming that unlicensed material and which is marketed as such. So, it shouldn’t mean anything for Twitch streamers, or even Twitch itself. However, if you run a site called ultrastreamz5431.biz which is dedicated to making money by illegally broadcasting UFC fights, you could be convicted of a crime punishable with a fine and a maximum of three or five years of jail time (depending on certain conditions) for a first offense.

“As a general matter, we do not see the need for further criminal penalties for copyright infringement,” said Meredith Rose, senior policy counsel for open internet advocacy group Public Knowledge. “However, this bill is narrowly tailored and avoids criminalizing users, who may do nothing more than click on a link, or upload a file. It also does not criminalize streamers who may include unlicensed works as part of their streams.”

So, while the bill specifically targets those who offer services dedicated to unlicensed streaming—not any individual who happens to stream a bit of unlicensed music on Twitch, as an example—the fact remains that a type of criminal copyright infringement with potential jail time for offenders is being defined here, and there may be ramifications we don’t expect (such as an unusual interpretation of the bill’s wording) or that go beyond the bill itself (such as an increase in legislation like this). It’s not the cause for alarm some of the more hyperbolic claims going around would have you believe, but some cause for alarm nonetheless. What you’re more likely to notice, though, is CASE.

What the CASE Act does

A much broader change to US copyright law comes from CASE, which was first introduced in 2017, and stands for Copyright Alternative in Small-Claims Enforcement. It was passed with this big spending bill, too.

The CASE Act creates a new small claims system in the US that allows copyright holders to pursue damages for copyright infringement without filing a federal lawsuit. These claims would be decided by copyright officers, not judges and juries, and could involve no more than $15,000 per work infringed upon, and $30,000 total. Someone hit with a CASE Act claim could, if they’re on top of things, opt out of the system, which would mean the copyright holder would have to make a federal case out of it (which they may not care to do).

Proponents of the CASE Act say that it would empower small copyright holders—say, individual graphic artists—to challenge copyright infringement, which is difficult right now because of the cost and complexity of launching a federal case, something big corporations are far more equipped to do than individuals. 

“The small copyright claims tribunal proposed by the CASE Act would be an equitable and affordable option for graphic artists with small copyright infringement cases,” wrote Graphic Artists Guild national president Lara Kisielewska last year. “It’s a solution that is long overdue for individual creators and small copyright holders, for whom copyright has too often been a right without a remedy. And it’s a necessary correction to a system in which infringers have been able to act with impunity.”

CASE is also supported by the Recording Academy (which puts on the Grammys).

Opponents of CASE, such as the Electronic Frontier Foundation, say that it could be a disaster for normal internet users. “The CASE Act could mean internet users facing $30,000 penalties for sharing a meme or making a video,” wrote the EFF earlier this month. “It has no place in must pass legislation.”

In other words, the EFF’s take is that someone who uses the internet in a typical manner, without necessarily making any money off of their participation in social media, could be hit with CASE claims just for sharing memes or using copyrighted music in a video. “The only way out would be to respond to the Copyright Office—in a very specific manner, within a limited time period,” writes the EFF. “Regular internet users, those who can’t afford the $30,000 this ‘small claims’ board can force you to pay, will be the ones most likely to get lost in the shuffle.”

So, on one hand, you have frustrated creators who feel they have no recourse when larger entities use their copyrighted work without permission—sometimes, for instance, you’ll see a fashion company rip-off the work of an independent illustrator—and on the other, you have fears that these tribunals will be abused, especially by larger copyright holders, such that $30,000 claims are chucked at people who may not know how to respond to them. And, the argument goes, if small creators try to use CASE in a legitimate way to challenge corporations, the corporations will simply opt out anyway.

“Sophisticated defendants—the kind of repeat infringers that artists express the most concern about—probably won’t be common in the [Copyright Claims Board],” wrote Rose from Public Knowledge back in 2017. “Instead, the typical claims to proceed will likely be against less sophisticated defendants, such as individual households and small businesses. After all, it is these defendants—not big businesses or sophisticated mass infringers—who will be far less likely to opt out, in many cases because they fail to understand and properly respond to the complaint, and therefore end up defaulting. Unfortunately, these are the sorts of cases where the risks of abuse are the highest. Thus, it’s not hard to see how trolls and default judgments could come to dominate the system.”

Congress didn’t have time to read the bill

Aside from these copyright measures, $600 stimulus checks for adults and other COVID-19 relief acts, the government spending package contains reams of other legislation—it’s over 5,500 pages long, allocates hundreds of billions of dollars, and was only received in its current form by congressmembers this afternoon. 

“This isn’t governance,” said Democratic Representative Alexandria Ocasio-Cortez about the pressure to vote on the enormous bill. “It’s hostage-taking.”

Republican Senator Mike Lee had similar feelings. “I’ve been in the Senate now for 10 years, and this is by far the longest bill that I’ve ever seen,” he said in a video on Twitter. “One of the things that is extraordinary about this one is that, because of the length, it is impossible that anyone will have the opportunity to read it between now and the time that we will vote.”

You can see the entire text of the “Consolidated Appropriations Act, 2021” here. Now that the Senate has approved the package, it heads to President Trump’s desk to be signed.

Published at Tue, 22 Dec 2020 06:58:42 +0000