Written by Eric Zorn — You just booked a family trip to Arizona! To spread the good news, you take to your social media accounts — Facebook, Instagram, Twitter and the like — and announce your upcoming vacation to a few hundred friends and followers. To add visual interest to your posts, you append a gorgeous, professional photo of the Grand Canyon that you grabbed in a Google Images search.
Including the picture is ridiculously easy to do. It’s also wrong.
When you use the creative output of photographers, musicians, graphic artists, writers and others without permission, you take from them control over their work, and sometimes money they would be owed. They’ve long been able to sue transgressors in federal court, but the cost of waging an inevitably complex legal battle is so high — estimated at an average of $400,000 by Keith Kupferschmid, CEO of the Copyright Alliance — that, realistically speaking, the victims of such theft have little recourse other than to send demands to the thieves and social media providers that they take down the material.
A proposal now moving through Congress — the Copyright Alternative in Small-Claims Enforcement (CASE) Act — aims to make it far easier to win damages when work is stolen by small-time violators. CASE will create a three-judge panel within the U.S. Copyright Office to rule on minor intellectual-property disputes that are now too expensive for creators to pursue.
For a modest filing fee, plaintiffs will be able to seek judgments of up to $30,000 in actual and punitive damages in streamlined proceedings in front of the Copyright Claims Board — a panel with more expertise in that complicated area of law than most federal judges have.
It’ll be a sensible way for the photographer who took that gorgeous Grand Canyon photo to win compensation from a hotel, tour planner, mule-ride company or any other small business that used the image for commercial purposes without permission, and that’s good.
But, as written, CASE stands also to be a tool for opportunistic lawyers to use to threaten, confuse and extract settlements from normal people like you who just want to inform and entertain on social media, or maybe dress up a blog post or illustrate a community newsletter, not make a buck off someone else’s creation.
Because, yes, it’s wrong to steal. But in many such cases it’s not that wrong, come on. When you’re not profiting from the unauthorized use and not ducking licensing fees you’d otherwise be willing to pay, it’s a trifling offense worth little more than a mild scolding.
Under CASE, alleged violators will get 60 days to decide whether to opt out of the small claims process or to take their chances in the existing federal court system, where they could be made to pay much more if they lose. CASE will make it easy for lawyers to intimidate legally unsophisticated people — that would be most of us — into settling such complaints for maybe a couple thousand bucks rather than hiring a lawyer and hoping that posting that Grand Canyon photo fell into the fuzzy category of “fair use.”
If accused people don’t respond for any reason, the Copyright Claims Board will be able to hear the complaint against them without their input, and potentially to hit them with significant penalties. And in most instances, their decisions can’t be appealed.
Kupferschmid, whose membership organization is promoting the CASE Act, assures social-media sharers not to worry. “Photographers and other creators generally have no interest in bringing individuals who are using their photos for noncommercial purposes to small claims court,” he wrote in one of the emails we exchanged after a phone interview. “It would be too difficult for them to police such uses and too time consuming to pursue so many of these cases ... time that they are not creating and making money creating.”
But Joshua Lamel, executive director of Re:Create, a group opposing the bill, notes such that nothing in the legislation prevents small-time content creators from assigning or selling collection rights to lawyers who would then shake down alleged violators.
Lamel notes that advocates for the bill have resisted other proposed reforms:
- Limiting small-claims actions to those who have ignored take-down requests or who are making commercial use of the disputed material
- Including access to an appellate court
- Requiring plaintiffs to represent themselves before the Copyright Claims Board unless the defendants have lawyers
- Reducing the potential damage awards to amounts more in line with those in conventional small-claims courts, and limiting them to actual damages, not punitive damages.
The American Civil Liberties Union has the right idea. In a letter to congressional sponsors last month, the ACLU wrote that evidence “strongly suggests a need” for a new, small-claims process to protect copyright, but that the CASE Act goes too far. The group argued for the proposal to be revised to include the above changes because, as is, it doesn’t provide defendants due process or “protect the free exchange of information that has become essential to modern American life.”
Crack down on the real violators, in other words, without afflicting those who just want to illustrate their happy news.
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