The Virus Inside the COVID Relief Bill: A Copyright Bomb

The long-threatened era of regulation of Big Tech is apparently now upon us. Earlier this month the Justice Department and 48 states sued Facebook charging it with illegal anti-competitive behavior and seeking to break it up. Google also has its woes – it’s been sued three times this fall by the US government for anti-competitive behavior.

Big Tech does need regulating. And from the outside, it certainly appears that Google and Facebook (and other tech companies) have constructed anti-competitive monopolies that we’d do well to reign in. But Congress’s initial salvos range from the naïve (Sen. Josh Hawley – pedaling hard to be the Republicans’ lead on the issue – proposing, among other things, to make illegal Facebook’s endless scroll of posts); to the incomprehensibly uninformed (a Republican Congressman at one of last summer’s show-panel hearings of star tech CEOs demanding of Google CEO Sundar Pichai why his campaign emails weren’t being delivered); to the punitive (Donald Trump’s insistence on removing Section 230 legal protections from tech platforms that stipulate that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”); to the deeply misguided (last week’s COVID relief/government funding bill, which contains a noxious copyright bomb that would change the very nature of how content is shared online).

The more prominent of two provisions in the funding bill is new penalties for anyone who shares streaming content for which they don’t own the copyright. The measure is aimed at those who facilitate piracy of videos or music, and fines of up to $30,000 and jail terms of up to ten years can be assessed. But the language has internet watchdogs such as the Electronic Frontier Foundation (EFF) worried, as it targets “individuals who access pirated streams or unwittingly stream unauthorized copies of copyrighted works.” It could make liable anyone who shares a meme or video over social media. Or even someone who shoots a video with copyrighted artwork in the background.

Potentially this new provision threatens the fundamental culture of social media sharing. Though it’s aimed at copyright pirates who make money from piracy, all manner of social media influencers, users, and content aggregators could be caught.

Passage of the measure is one of the clearest public signs yet of longstanding tensions between the tech and entertainment industries and who’s winning the battle for control. Big Entertainment (Disney et al) has benefited enormously from technology in producing content and getting it to consumers in new ways, but Big Tech (Google et al) has also given consumers (and upstart content producers) the means of accessing that content on their own terms, which Big E sees as a threat. This has shaped up as a battle for control of who dominates the consumer’s attention.

Regulators have been trying for more than a decade to impose hefty penalties (under intense prodding from Big E), but the move has been repeatedly blocked by powerful Big T. That this long-sought Big E provision got slipped into the middle of this massive spending bill, with virtually no notice or debate, is the surest sign yet that the shine has faded from Big T’s standing in Congress. With astonishing speed over the past few years, Big Tech has gone from inventor of the future to everyone’s favorite whipping boy with blame for what ails us.

The second provision in the funding bill is the CASE act — the “Copyright Alternative in Small-Claims Enforcement Act” — which would create a new system to judge copyright holders’ claims. Currently, under the Digital Millennium Copyright Act, copyright holders who believe their content has been illegally posted online can file a DMCA complaint, and the content is usually removed. But that doesn’t necessarily remedy the stealing that has already occurred. So there needs to be a better system of enforcement and redress, and the entertainment industry has been lobbying hard for reform. But as the EFF describes it, the CASE act is an attempt at an overly simplistic fix for a very complicated problem:   

“In reality, it creates an obscure, labyrinthine system that will be easy for the big players to find the way out of. The new ‘Copyright Claims Board’ in the Copyright Office would be empowered to levy large penalties against anyone accused of copyright infringement. The only way out would be to respond to the Copyright Office—in a very specific manner, within a limited time period. 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.

‘The CASE Act doesn’t create a small-claims court, which might a least have some hard-fought for protections for free expression built in. Instead, claims under the CASE Act would be heard by neither judges or juries, just ‘claims officers.’ And CASE limits appeals, so you may be stuck with whatever penalty the ‘claims board’ decides you owe.”

Consequences of the new law? A chilling effect in which the harsh threat of liability suppresses sharing. So what, you say — sharing copyrighted content without permission should be discouraged. Yes, but it’s not so simple. Is Google violating copyright when you enter a search and it lists results that pull headlines and snippets of text from sites it’s found? (News organizations have been arguing that Google indeed should pay them for listing headlines in searches.) How about fan sites that make memes based in pop culture? A movie studio might be encouraging and promoting these memes if they’re positive, but what if they’re critical?

The internet is currently awash in copyright trolls trying to extort sites over content for which they claim copyright. If you run a blog and have quoted text or showed a thumbnail image linked to another site, you’ve likely heard from such a troll. Under the Digital Millennium Copyright Act, there’s a process by which copyrighted content can be removed; in most cases, the content is taken down. It’s a bad system though, since tracking and pressing claims is onerous and time consuming and typically doesn’t result in copyright holders getting redress for violations. And, as any number of artists have discovered, trying to police their rights on the internet is an Orwellian game of Whack-a-mole in which new copies of popular content can pop up faster than old ones are taken down.

Clearly, a better system to protect ownership needs to be devised, and the CASE act tries to simplify the ability of copyright owners to press their claims. But in simplifying, the act puts new weapons in the hands of Big E and gives oxygen to the trolls who can file mountains of claims to tie up smaller websites and individual users in expensive and time-consuming defenses. Big Entertainment will do fine, but smaller enterprises built on sharing culture and innovation will wither.

It’s not that copyrights shouldn’t be defended, but this law and its threats of penalties will stunt the legitimate (and legal) sharing culture that most creators seek.

So we’re in a new era of tech regulation. Given the stakes, one would like to think that initiatives for reform for an industry that has invented itself and changed the world over the past 25 years would be thoughtful, targeted, and smart. Instead, we’re now caught in a high stakes battle between Big T and Big E in which whoever has the ear of Congress will have the upper hand. Given that these first two salvos were buried in a gigantic 5,000-page government funding bill that had absolutely nothing to do with copyright or tech regulation, had no testimony or public comment, and was hurriedly debated in emergency conditions, Big T is in for a rough few years. The regulatory era has gotten off to a dismal start.