The latest US COVID-19 relief bill is the perfect vehicle for passing unrelated legislation, because concessions will be made to avoid holding up money for the public. As a result, Congress isn’t simply voting for or against a $600 per person stimulus package, unemployment aid, and other acts related to COVID-19 relief today. It’s voting for a massive government funding plan that includes thousands of pages of unrelated legislation, 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 the Tillis illegal streaming law is about
Web freedom advocates push back on any legislation that expands the powers of the entertainment industry—parts of which will doubtlessly exploit new laws in their favor as thoroughly as possible—but it is worth being clear about what the Tillis proposal does and doesn’t do. It does not target individuals who are streaming on Twitch, YouTube, or anywhere else, even if they’re streaming copyrighted stuff without a license. It only targets, and the wording is quite explicit about this, people who operate services (like a website) that are solely dedicated to making money off of streaming copyrighted stuff without a license.
To be prosecuted under this proposed law, you’d have to be operating a streaming service “primarily designed or provided for” streaming unlicensed material and which “has no commercially significant purpose” beyond streaming that unlicensed material, and is marketed as such. So, it won’t mean anything for Twitch streamers, or even Twitch itself, but under the proposal, if you run a site called “ultrastreamz5431.biz” which illegally broadcasts UFC fights, you could be convicted of a felony punishable with a fine and a maximum of three or five years of jail time (depending on certain conditions) for a first offense.
That cleared up, the fact remains that jail time for enemies of the entertainment industry is being sneaked into a spending package that’s supposed to help people live through a pandemic (and doesn’t accomplish that). And, as I mentioned, there’s more: The CASE Act.
This is why Congress needs time to actually read this package before voting on it.Members of Congress have not read this bill. It’s over 5000 pages, arrived at 2pm today, and we are told to expect a vote on it in 2 hours.This isn’t governance. It’s hostage-taking. https://t.co/JpBbEHHkVGDecember 21, 2020
The big one: CASE
CASE has been around for a while (it was first introduced in 2019), and it stands for Copyright Alternative in Small-Claims Enforcement. It’s a part of this big spending bill, too.
What the CASE Act does is create 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 handled 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.”
Opponents of CASE, such as the Electronic Frontier Foundation, have a number of objections to it. “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 intending to make 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 the potential for these tribunals to be abused, such that $30,000 claims are chucked at everyday people who may not know how to respond to them.
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. It’s hostage-taking,” said Democratic Representative Alexandria Ocasio-Cortez.
You can see the entire text of the “Consolidated Appropriations Act, 2021” here. The spending package is being voted on tonight. At the time of this article’s last update, it has already been passed by the The House of Representatives, and next goes to the Senate.