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ATTN: US based Musicians. The CASE ACT Copyright BILL approved by the Senate Judiciary Committee
RE: The “Copyright Alternative in Small-Claims Enforcement Act of 2019”
The general premise of this Bill is to established a Copyright Claims Board in the Copyright Office which will serve as an alternative forum in which parties may voluntarily seek to resolve certain copyright claims.
I am opposed to this bill, and am concerned that if this becomes Law, it will provide a venue for copyright trolls to bring claims against amateur musicians for infringements such as similarities to copyrighted works found in songs posted to youtube videos, or any other kinds of music hosting platforms.
I am not an Attorney, I am expressing my own opinions and concerns, and I certainly may have my facts wrong
If I understood what I've read about this Bill correctly:
This Bill will essentially establish a Small Claims type court within the Copyright office for the purpose of adjudicating copyright infringement claims of $30,000 or less.
The problem with this Bill is that claims brought before this "Claims Board", will essentially be arbitrated by only three persons, or only one person in the case of claims less than $5000. The traditional rules of legal proceeding will not apply.
This Bill calls this a "voluntary" system. However, it is voluntary only to the degree the it provides Respondents (the defendants) a 60-day opportunity to reply after being served, to "Opt-Out" from this small claims system, and instead force a claimant to raise the claim in federal court.
I've read multiple opinions in various articles about the dangers of such an Opt-Out system. One concern is that "copyright trolls" will target average citizens who may not have the legal savvy to understand what receiving such a claim means. They may not have the resources or time or knowledge to understand how to respond to such claim.
Because the public at large already faces a barrage of scam junk mail, phone calls, texts, and emails, certain individuals may simply toss a claim letter into the trash believing it is a scam.
The main problem with this Opt-Out system. Is that failing to respond to a claim in 60 days results in an automatic Opt-In, and then the Respondent looses their constitution right to "Due Process" in a court of law.
This creates a possibility for "copyright trolls" to scan the internet looking for anything that may qualify as a copyright infringement, file a claim, and hope the Respondent will fail to reply or defend themselves. The Bill then provides for "Default" awards to be granted to the claimant.
Once a default award is granted, the Respondent has only 30 Days to oppose the default determination. After which, the Respondent will have narrow options to appeal the default judgment.
As a "hobby musician", I find the prospect of this bill becoming law very concerning. Not because I have any intentions of infringing on anyone's copyright. But because recent rulings in high profile music infringement cases (e.g. The Katy Perry "Dark Horse" case), are setting a very low precedent for the level of "sameness" in music that constitutes what an infringement is.
The point I hope to express, is that music has been inspired by other music for thousands of years. Music is basically math, and their are only so many ways notes can be arranged in complimentary ways.
If we end up with hundreds or thousands of "copyright trolls" scanning youtube and other sites using computer programs that search for only "inherently common similarities" between two pieces of music. If those trolls start to file claims "in mass" against small music creators. I believe this could result in many deciding that sharing their creative works will just not be worth the risk.
I think society benefits when small artists have the ability to make their creative works available for the public to appreciate.
Making determinations about complex infringement cases belongs in real courts, where defendants have all options available to fight for their rights.
At the very least I think this Bill should be changed to be an "OPT-IN" system. At least that would rid it of potential abuse by Trolls.
I also find it concerning to think about the Sample and Loop industries might be effected by such a Law. Imagine Copyright trolls representing the producers of Samples and Loops searching the internet for "unlicensed users".
I agree that there should be a better system for creative artists to bring claims against "significant" infringement in an affordable manner.
But I think such a system should not be designed in any way that opens the door wide for Copyright trolls to wage war on small creators for the express purpose of profiting by methods that amount to "Vulture Capitalism".
I plan to write my Congressmen, to ask them to oppose this Bill in its current iteration.
Life-Altering Copyright Lawsuits Could Come to Regular Internet Users Under a New Law Moving in the Senate.
Electronic Frontier Foundation
Scholarly Concerns About a Proposed Copyright Small Claims Tribunal
Berkeley Technology Law Journal, Vol. 33 (forthcoming)
(Click on "Open PDF in Browser" to view full text)
S.1273 - CASE Act of 2019116th Congress (2019-2020)
(Text of BILL on the Congressional website)