When members of the US government want to pass legislation they might otherwise struggle to get votes for, they package it with a bill that everyone agrees needs to pass in some form. The COVID-19 stimulus bill is the perfect vehicle for unrelated legislation, because voting against money for the public (even far too little money) isn't a great look. But what is Congress voting for with a vote for the $600 per person stimulus package today? Thousands of pages of unrelated legislation, including some important changes to online copyright law.

One copyright-related part of the bill that's getting a lot of attention is, in some cases, being misunderstood. 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 rendered 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.

While web freedom advocates typically push back on any legislation that expands the powers of the entertainment industry—which will doubtlessly exploit any laws in its favor as thoroughly as possible—it is worth being clear about what the Tillis proposal does and does not. 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 does target people who operate services 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, but under the proposal, if you run "ultrastreamz5431.biz/UFC," you could be convicted of a felony punishable with a maximum of 5 years in jail. 

That cleared up, it still isn't right that jail time for enemies of the entertainment industry is being sneaked into a bill that's supposed to help out people live, and as of now doesn't accomplish that. 

More relevant to the average person, however, is the CASE Act, which was also jammed into the stimulus bill just under the felony streaming section. CASE has been around for a while, and it stands for The Copyright Alternative in Small-Claims Enforcement Act.

What it does is create a new small claims system that allows copyright holders to pursue damages for infringement without filing a federal case. 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.

Proponents of CASE 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."

Aside from these copyright measures and the $600 stimulus checks, the proposed bill, which you can see the entire text of here, contains an absurd amount of other legislation. It's over 5,500 pages long, and allocates billions of dollars at a time that have nothing to do with COVID relief. "This isn’t governance. It’s hostage-taking," said Democratic Representative Alexandria Ocasio-Cortez.

Congress votes on the bill tonight.

December 21, 2020 at 05:23PM
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