Will Posting Memes Or Pro Wedding Pics Land You In Copyright Small Claims Court?
When Jeff Sedlik opens up Amazon, he sees his work for sale all over the place. A successful commercial photographer, his photos are easily spotted on T-shirts, hats, bibs, mugs, calendars, cellphone cases and so forth.
Few of those sellers use his work with permission. Instead of legally licensing Sedlik's pictures — which include a haunting 1989 portrait of jazz legend Miles Davis — they pull images off the Internet and slap them on products quickly bought from printing companies such as Red Bubble and Café Press. While strangers profit from his work, Sedlik doesn't see a dime. There's little, he says, he can do to protect himself.
"As fast as I can, I send what are called DMCA takedown notices to Amazon and they sometimes take [the products] down, and when they do, they come right back up within a week," Sedlik explains. "And if I want to go to federal court, I need to engage a lawyer. And if I want to engage a lawyer, it's very expensive. "
That's where the CASE Act comes in. When Congress passed the massive stimulus bill in late December, it was — like lots of legislation — packed to the gills with stuff that had nothing to do with government funding. Tucked among tax breaks for various industries were a few provisions intended to counter online piracy, including the CASE Act, standing for Copyright Alternative in Small-Claims Enforcement. Sound dull? Read on.
"What it does is create a small claims court within the U.S. Copyright Office," says Keith Kupferschmid, CEO of the Copyright Alliance, a lobbying group that's pushed for the CASE Act for years. "The absolute maximum you could be liable for is $30,000."
The idea is for Sedlik and other creators to be able to sue, quickly and easily, people who use their copyrighted work without permission.
"That will have wide-ranging implications for your small copyright holders, small creators, your songwriter, your artists, your authors, your blogger, your YouTuber," Kupferschmid continues. "This isn't about the big movie studios or the big record labels. They have enough money, enough lawyers. They can go to federal court when they're ripped off."
The Copyright Alliance represents plenty of big movie studios and record labels, including Disney, NBCUniversal, Warner Media and ViacomCBS — as well as thousands of independent creators. It's a big tent, which leaves some small creators unsettled.
"I'm concerned the effects will be ... not good. And likely very large," remarks Andi McClure, an independent game developer. She pointed to other legislation she describes as having unintended consequences, including the anti-sex trafficking legislation known as FOSTA-SESTA, which is criticized by sex workers who said it endangered them by driving them off certain virtual platforms. "I do see concerns in the community that things seem to be changing and not for the better in general."
Jeff Sedlik is less concerned. As well as being a photographer, he's the CEO of the Plus Coalition, a group working to make it easier to figure out who owns the copyrights to images. He agreed to spell out the process of filing a claim through the CASE Act.
"I fill out the paperwork, and I notify the infringer that I'd like to do that," he says. "Then the Copyright Office also notifies the infringer that I've filed something. And then the infringer can say... 'No, I don't want to be in small claims.' "
It's not about hauling people into court and getting them to pay these fines. It's about negotiating the settlement so the person actually licenses the work the way they should've.
That's where things get a little baffling. The alleged infringer can opt out by going online and checking a box, says Keith Kupferschmid, likening the process to getting a warning for a speeding ticket — raising awareness, maybe putting a little fear of God into copyright violators.
"It's not about hauling people into court and getting them to pay these fines," he says. "It's about negotiating the settlement so the person actually licenses the work the way they should've."
So could everyday Internet users get sued for sharing memes on social media? The possibilities worry Meredith Rose, policy counsel for the consumer advocacy group Public Knowledge.
"We talk about outlawing memes — I feel like this is an old saw and we always fall back on it," she says. "But there are actual causes of action. People could sue over this stuff." She cites a few infamous examples, such as the "monkey selfie" and the Socially Awkward Penguin.
Rose believes the CASE Act may violate the Constitution's separation between judicial and governing branches, by putting a court system inside the Library of Congress ("which is part of Congress") and could lead to a cottage industry of lawsuits aimed at people who don't even know they're infringing.
"My mom posted our wedding photos online. I'm not sure if she had the right to that under our photographer's contact," Rose offers by way of example. "No one is reading those."
Ideally, says Kupferschmid, Rose's mom would just have to pay the $500 or whatever extra amount the photographer charges to post the wedding pics on Facebook. And he adds, the CASE Act also limits how many claims people can file and includes guardrails against copyright trolls — people who use frivolous lawsuits to make money.
"There are harsh monetary penalties if someone is found to be filing frivolous claims," he says. "And that person, if they do it more than once, i.e., if they are repeat violators or offenders, they can be banned from using the court entirely."
It's not in a reasonable person's best interest to be suing people left and right, he points out.
"But that's not terribly reassuring, because there might be some unreasonable person who might," rejoins Meredith Rose, of Public Knowledge. She says our copyright law is a relic from a time when few of us had the means to reproduce copyrighted work. Obviously, that's changed.
"Copyright law is just a mess," she says. "A lot of copyright lawyers wouldn't have a job if it wasn't a mess."
And a lot of people want to make their living by making and creating things. If there's one point of agreement, it may be: The Internet should make that easier, not harder.
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