By Mike Masnick
Last week we wrote about an effort in Congress, which appeared to be succeeding, to try to sneak through a controversial (and likely unconstitutional) copyright reform bill by adding it to a must-pass government funding bill. The ACLU has now stepped into explain why this a bad idea and should not move forward:
The American Civil Liberties Union, on behalf of its more than three million members, supporters, and activists, writes to you today regarding recently reported efforts to include S. 1273/H.R. 2426, the CASE Act in upcoming legislation to fund the government. The CASE Act is a controversial provision that would significantly alter the enforcement of copyright law and would have the unintended consequence of undermining free expression online. Because we recognize that it is essential to fund the federal government, particularly during the ongoing public health crisis, we ask that you decline to include the CASE Act in the upcoming funding bill and instead allow that provision to proceed through regular order where Members will have an opportunity to address the significant concerns raised by the bill before it passes into law.
Many supporters of the bill insist that those of us opposing it are against the idea of helping copyright owners, but nothing is further from the truth. What we oppose is the method set up in this bill, which will enable much more copyright trolling in a manner likely to stifle free speech. As the ACLU notes:
As we have said before, we do not oppose the CASE Act’s central idea of creating a small claims process to allow copyright owners to assert infringement and be awarded damages for the harm caused. There is evidence that strongly suggests a need for such a system, as many copyright holders have argued. However, because the CASE Act could affect every person that communicates online, we believe that changes are needed to ensure adequate safeguards for due process and the protection of the freedom of speech. In particular, the bill should be amended to provide for access to meaningful judicial review, a reduction in the damages available for small claims violations, and additional safeguards to ensure the process is procedurally fair for both parties. In order for those essential changes to be made, we ask that you decline to include this bill in any must-pass government funding bill, and instead allow the CASE Act to be considered through the regular order process where Members will have the opportunity to address these concerns.
What’s been most upsetting and annoying throughout the process of the debate on this bill is the utter unwillingness of the bill’s supporters to engage with people who have pointed out these fundamental problems with the bill. If they actually did engage and fix the problems in the bill, it would likely gain much more support across the board. Instead, they continue to try to shove it through in this form, using sneaky processes like adding it to the government funding bill.