By Mike Masnick
It was only mid-day yesterday that it was confirmed that Congress has slipped in two controversial copyright provisions into the must-pass government funding bill. Last night, as everyone expected, that must-pass bill did indeed pass, and it will soon be law.
There are many, many reasons to be frustrated about this. First, just the way this was done is incredibly stupid. The government waited until the very last minute (with a couple of “extensions”) to work out this agreement on a combination of the COVID relief bill (which is way too small and way too late for many, many people) and a bill to actually fund the government and avoid a shutdown. It’s already ridiculous that we have to do this government funding bill each year, especially considering that Congress already approves a budget earlier in the year, and the appropriations bill is really just a fight over how to apportion what Congress has already agreed to spend. And then, because the appropriations bill is considered a “must pass” to keep large parts of the government funded, Congress lights it up like a Christmas tree with totally unrelated bills they couldn’t get passed through normal process.
Incredibly, some politicians, like Senator Chris Murphy of Connecticut, seem proud of this practice:
When a big bill like this comes together, your job as a lawmaker is to try to get as many of your legislative and funding priorities into the text as possible.
Throughout the day, I’m going to explain the provisions in the omnibus budget/COVID relief bill that I led.
— Chris Murphy (@ChrisMurphyCT) December 21, 2020
I get why he’s proud of getting some things into the bill, and many of the things he may be proud of are good. But many of them do not belong in this bill and should not be in a 5,000 page bill that was revealed mid-day and voted on hours later.
Incredibly, while the bill does have 2,000 pages of actual appropriations details, the other 3,000 pages are totally unrelated bills that Congress couldn’t pass through the rest of the year. Even if you like the bills, even if you are mad that Congress is gridlocked at other times, that’s no excuse to support this awful undemocratic process. Everything about it is bad.
Now, lots of people are still combing through the bill to find all the awful landmines that it’s too late to do anything about, but the two that we’ve been talking about here are the copyright provisions. I’ve already explained multiple times why the felony streaming bill and the CASE Act are extremely problematic, so I won’t go over either again. I will note that neither final provision is as bad as they were in earlier versions. Both were somewhat limited from truly terrible provisions to what is today merely awful. But that’s nothing to celebrate.
As I said yesterday with regards to both bills, copyright law is controversial for a wide variety of reasons, but the biggest one is this: small tweaks to copyright law can have a massive impact on expression. Few people are even willing to grapple with the fact that significant parts of copyright law raise 1st Amendment issues. And when you rush through both of these bills (the felony streaming bill received literally no discussion or debate), you impact speech in a massive way. The felony streaming bill, even with its restrictions to platforms, may scare off many platforms from being willing to host streaming content, despite it being a key way in which many people — especially younger generations — express themselves these days.
The CASE Act, similarly, threatens to unleash a new generation of copyright trolling, at a time when we already have too much copyright trolling, threatening and shaking down people for money over incidental and accidental infringement. On top of that, especially in the midst of a pandemic when so many people are stuck at home and communicating, living, and working virtually, doing perfectly normal things can and will be seen as infringing. Nearly 15 years ago, law professor John Tehranian wrote about how on a random day that he tracked, he realized he (a copyright law professor!) probably committed 83 acts of infringement.
As we wrote a few years back, the only reason that copyright doesn’t destroy speech is that he world has recognized a concept of copyright toleration — which is that, more or less, copyright holders have mostly looked the other way at incidental and accidental infringements that happen all the time. The entire point of the CASE Act is to slam the door shut on the entire idea of copyright toleration, and open the floodgates for copyright holders to shake down basically anyone for such incidental uses — telling them they could owe up to $30,000 as assigned by a non-judicial tribunal housed in the Copyright Office itself.
Supporters of the CASE Act say it’s no big deal because you can opt-out of the process if you don’t like it. But the opt-out process is unclear and potentially confusing. And, of course, in doing so, you are poking the copyright holder, and potentially egging them on to file an even more disastrous federal copyright lawsuit against you. But, honestly, just the mere threat of facing $30,000 fines from this new tribunal will cause many to shut up. It will cause many to pull down speech or never make it at all, because who wants to deal with that threat?
And, as law professor Eric Goldman notes, we did all this to get a stimulus package that will give a mere $600 to individuals… but that $600 likely won’t cover your CASE Act bill, and you’ll need many more stimulus checks to deal with the fact that you promoted a song you liked. It’s a complete travesty.
Just to put things in perspective, you’re going to need 50 stimulus checks to cover the damages demanded by a copyright owner in your first CASE Act proceeding https://t.co/OjrvhmdGED
— Eric Goldman (@ericgoldman) December 22, 2020