Some Answers to Questions About the State of Copyright in 2021

In all the madness that made up the last month of 2020, a number of copyright bills and proposals popped up—some even became law before most people had any chance to review them. So now that the dust has settled a little and we have some better idea what the landscape is going to look like, it is time to answer a few frequently asked questions.

What Happened?

In December 2020, Congress was rushing to pass a massive spending bill and coronavirus relief package. This was “must-pass” legislation, in the sense that if it didn’t pass there would be no money to do things like fund the government. Passing the package was further complicated by a couple of threats from President Trump to veto the bill unless certain things were in it.

In all this, two copyright bills were added to the spending package, despite them not having any place there—not least because there hadn’t been robust hearings where the issues with them could be pointed out. One of the bills didn’t even have text available to the public until the very last second. And they are now law.

The omnibus bill is 5,593 pages long. These new copyright laws are pretty close to smack dab in the middle, starting on page 2,539.

What Are These Laws?

They are the Protecting Lawful Streaming Act of 2020 and the Copyright Alternative in Small-Claims Enforcement Act (CASE Act). The former makes operating certain kinds of commercial streaming services a felony. The second creates a weird “Copyright Claims Board” within the Copyright Office that can hand out $30,000 awards for claims of copyright infringement. One is not going to impact the average Internet user that much. One is more dangerous.

What Is the Felony Streaming Law?

The Protecting Lawful Streaming Act of 2020 only had text publicly released about two weeks before it became law, and interest in it was high. This was partially because people heard there was a felony streaming law but no details whatsoever.

It isn’t a great law—we simply do not need more penalties for copyright infringement and definitely not ones that make it a felony—but the good news is it won’t affect most people.

Since most people don’t run such services, and the law does not affect the safe harbor provisions of the Digital Millennium Copyright Act, most of us won’t be running afoul of this law.

What Is the Copyright Alternatives in Small-Claims Enforcement (CASE) Act?

The CASE Act is a different story altogether. It is, at best, a huge waste of time and money. At worst, it will hover unconstitutionally like a dark cloud over everyone attempting to share anything online.

The CASE Act creates a “Copyright Claims Board” in the Copyright Office that can hear infringement claims by rightsholders seeking redress of no more than $30,000 per proceeding.

CASE Act’s proponents claim this process is voluntary, but rather than both parties agreeing to this process—aka an “opt in” system—everyone is presumptively bound by the board’s decisions unless they “opt out.” That is, you must affirmatively, in whatever manner the Copyright Office decides, say you do not want to participate in this system. You must do this every time you get a notice from this board if you don’t want to be subject to its decisions. If you don’t, if you ignore it in any way, you are on the hook for whatever they decide. And it’s a decision they can make without you defending yourself. And it’s a decision that has very limited appeal options.

For many people, opting out will be the best option as this process does not have the protections and limitations that a court case has. For example, a bad decision on fair use in court is subject to multiple levels of appeal. Under the CASE Act, decisions made by claims officers are extremely difficult to appeal. Making matters worse, the penalties the Copyright Claims Board is authorized to impose are high and will be, especially at first, unpredictable.

Okay, How Do I Opt Out?

Sadly, we cannot tell you that yet. A lot of this is left up to the Copyright Office to determine. The Copyright Office has until December of 2021 to get this thing up and running (with an option to extend that deadline by 180 days). In that time, they have to establish regulations about opting out. We hope that the regulations and system will be simple, clear, and easy to use.

That also means that the Copyright Claims Board does not exist yet. It could come into existence at any point this year. At the latest, it will start hearing cases in mid-2022.

What Should I Do If I Get Anything Related to the CASE Act?

If you get a letter from someone threatening to take you to the Copyright Claims Board unless you pay them and you don’t know what to do, get in contact with us by emailing info@eff.org.

One of the bigger problems with the CASE Act—and there are many—is that anyone with money or access to other resources like lawyers will know how to opt out and will be able to decide if that is the right decision for them. Such individuals or companies are unlikely to miss a notice or forget to opt out. Regular people, however, will be vulnerable to copyright trolls, who will profit from people unintentionally forfeiting their rights or caving to threats like we describe above.

Is That All?

Sadly not! In addition to these laws, there is also a proposed wholesale change to the online copyright ecosystem called the “Digital Copyright Act” or DCA. A draft of it was released in late December 2020, and it is very bad for anyone who uses the Internet. Worse, in many ways, than any other copyright proposal we’ve seen. We will continue to fight to keep these bad ideas out of the law, and we will need your help to do so.

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Author: Katharine Trendacosta

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