Oregon Content Creators Call Out Wyden Over CASE Act

Some Oregon content creators have a big bone to pick with one of their senators, Democrat Ron Wyden. That is because he has put a hold on a bill that they argue would make it easier for them to protect their copyrighted material, a big issue in a world of easy archiving and sharing of copyrighted images and video.

Sen. Ron Wyden

Sen. Ron Wyden

For his part, the Senator argues that the bill as currently drafted creates "an extrajudicial, virtually unappealable tribunal that could impose damages of up to $30,000 on someone who posts a couple of memes on social media" and says he is working on a way to protect both creators and due process.

A hold is when a senator indicates he does not want a particular bill to get a vote on the floor.  The majority leader does not have to comply, though usually does, since a hold puts him or her on notice the senator could filibuster an attempted vote.

The Oregon Professional Photographers Association (OPPA) plans to put up the billboard ad below in downtown Portland by Jan. 15 to call out the senator for holding up consideration of the bill.

The House last October overwhelmingly passed the Copyright Alternative in Small-Claims Enforcement [CASE] Act of 2019 (410 to 6), which would create a small claims court for copyright infringement cases.

The CASE Act, which was introduced in the House last May by Rep. Hakeem Jeffries (D-N.Y.), would establish the Copyright Claims Board in the U.S. Copyright Office. The legislation is billed as giving independent creators an easier and cheaper (than federal district court litigation) way to defend their intellectual property. 

Related: Wyden Says Days of Considering Edge Platforms Neutral Are Over

The bill's architect had been confident of passage. A staffer in Jeffries' office told Multichannel News at the time of its passage that they expected it to pass the Senate and be signed by the President. They said that while the Google-backed Electronic Frontier Foundation and other computer companies oppose the legislation, they have bipartisan momentum on their side on the Hill and likely the support of Jared Kushner, senior adviser to his father-in-law, President Donald Trump, for the presidential sign-off. 

But Wyden sees the bill quite differently, according to a statement from his office summarizing the senator's concerns.

"Senator Wyden’s office has had a number of conversations with CASE Act supporters on how to protect creators without the unintended side-effects to free expression and due process that are present in this bill," read the e-mailed statement. "Senator Wyden believes that the CASE Act, as currently drafted, does not strike the right balance between protecting artists and creators and fostering innovation, freedom of expression and education. He has heard concerns from The ACLU, the Association of Research Libraries, and others.

The legislation would create an extrajudicial, virtually unappealable tribunal that could impose damages of up to $30,000 on someone who posts a couple of memes on social media — even if they caused no economic harm to the creator. A judgment of $30,000 is enough to bankrupt many American families and it is a far greater amount than Americans can recover in most state small-claims courts. With virtually no judicial review, even the threat of such a judgment could stifle the legitimate fair use of content and lead to abuse of the system by bad actors who harass and threaten innocent internet users to win settlements."

Wyden argues the CASE Act could chill free expression. "He is actively working to find a solution that will protect Americans’ due process rights and First Amendment values while ensuring that authors, photographers, graphic designers and other creators can protect their works and earn a living," his office said.

Among the groups supporting the bill are the News Media Alliance, SAG-AFTRA, Authors Guild, RIAA, and the Copyright Alliance. Opponents, in addition to the ACLU and EFF, include fair use standard-bearer Public Knowledge, the Consumer Technology Association, whose members make the technology that allows for the distribution of intellectual property, fair use and foul, and the Computer & Communications Industry Association, whose edge provider members are often the targets of copyright infringement claims.  

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.