Sep 012018
 

This post originally appeared on Techdirt on 4/30/18.

One of the recurrent themes on Techdirt is that law itself should not become a tool for unlawful abuse. No matter how well-intentioned, if a law provides bad actors with the ability and opportunity to easily chill others’ speech or otherwise lawful activity, then it is not a good law.

The CASE Act is an example of a bad law. On the surface it may seem like a good one: one of the reasons people are able to abuse the legal system to shut down those they want to silence is because getting sucked into a lawsuit, even one you might win, can be so ruinously expensive. The CASE Act is intended to provide a more economical way to resolve certain types of copyright infringement disputes, particularly those involving lower monetary value.

But one of the reasons litigation is expensive is because there are number of checks built into it to make sure that before anyone can be forced to pay damages, or be stopped from saying or doing what they were saying or doing, that the party making this demand is actually entitled to. A big problem with the CASE Act is that in exchange for the cost-savings it may offer, it gives up many of those critical checks.

In recognition of the harm removal of these checks would invite, EFF has authored a letter to the House Judiciary Committee raising the alarm on how the CASE Act would only aggravate, rather than remediate, the significant troll problem.

Per the letter, federal courts have been increasingly “reining in [trolling behavior] by demanding specific and reliable evidence of infringement—more than boilerplate allegations—before issuing subpoenas for the identity of an alleged infringer. Some federal courts have also undertaken reviews of copyright troll plaintiffs’ communications with their targets with an eye to preventing coercion and intimidation. These reforms have reduced the financial incentive for the abusive business model of copyright trolling.”

But under the CASE Act, these provisions would not apply. Instead

[L]egally unsophisticated defendants—the kind most often targeted by copyright trolls—are likely to find themselves bound by the judgments of a non-judicial body in faraway Washington, D.C., with few if any avenues for appeal. The statutory damages of up to $30,000 proposed in the CASE Act, while less than the $150,000 maximum in federal court, are still a daunting amount for many people in the U.S., more than high enough to coerce Internet users into paying settlements of $2,000–$8,000. Under the Act, a plaintiff engaged in copyright trolling would not need to show any evidence of actual harm in order to recover statutory damages. And unlike in the federal courts, statutory damages could be awarded under the CASE Act even for copyrights that are not registered with the Copyright Office before the alleged infringement began. This means that copyright trolls will be able to threaten home Internet users with life-altering damages—and profit from those threats—based on works with no commercial or artistic value.

And that’s not all:

Another troubling provision of the CASE Act would permit the Copyright Office to dispense with even the minimal procedural protections established in the bill for claims of $5,000 or less. These “smaller claims”—which are still at or above the largest allowed in small claims court in 21 states—could be decided by a single “Claims Officer” in a summary procedure on the slimmest of evidence, yet still produce judgments enforceable in federal court with no meaningful right of appeal.

Also:

[T] he federal courts are extremely cautious when granting default judgments, and regularly set them aside to avoid injustice to unsophisticated defendants. Nothing in the CASE Act requires the Copyright Office to show the same concern for the rights of defendants. At minimum, a requirement that small claims procedures cannot commence unless defendants affirmatively opt in to those procedures would give the Copyright Office an incentive to ensure that defendants’ procedural and substantive rights are upheld. A truly fair process will be attractive to both copyright holders and those accused of infringement.

The CASE Act appears to reflect an idealized view that the only people who sue other people for copyright infringement are those who have valid claims. But that is not the world we live in. Trolls abound, parasites eager to use the threat of litigation as a club to extract money from innocent victims. And the CASE Act, if passed, would give them a bigger weapon.

It also gives would-be censors additional tools to chill their critics through the use of a new subpoena power administered through the Copyright Office, without sufficient due process built into the system to ensure that these subpoenas are not being used as a means of unjustly stripping speakers of their right to anonymous speech.

The CASE Act also gives the Copyright Office the authority to issue subpoenas for information about Internet subscribers. The safeguards for Internet users’ privacy established in the federal courts will not apply. In fact, the bill doesn’t even require that a copyright holder state a plausible claim of copyright infringement before requesting a subpoena—a basic requirement in federal court.

EFF was joined on this letter by many other lawyers (including me) and experts who have worked to defend innocent people from unjust threats of litigation, in the hope that it can help pressure Congress not to give the green light to more of it.

Apr 112013
 

The Computer Fraud and Abuse Act is no stranger to these pages.  The tragic suicide of Aaron Swartz at the beginning of the year following the relentless pursuit of the Department of Justice against him for his downloading of the JSTOR archive has galvanized a reform movement to overhaul – or at least ameliorate – some of the most troublesome provisions of the CFAA.

One such provision can be found at 18 U.S.C. § 1030(g), which creates a civil cause of action for a party claiming to be aggrieved by the purported wrongdoings described in subsection (a).  While civil causes of action are generally beyond the scope of this blog, having a civil cause of action buried in a statute designed to enable criminal prosecutions can be problematic for defendants facing the latter because the civil litigation, as it explores the contours of the statute and its internal definitions, tends to leave in its wake precedent that prosecutors can later use.  Which is unfortunate, because how the statute may be interpreted in a civil context — which inherently can only reflect the particular dynamics of the particular civil dispute between these particular private parties — reshapes how the statute will be interpreted in a criminal context.  Especially with a law like the CFAA, whose language always tempts excessive application, these civil precedents can vastly expand the government’s prosecutorial power over people’s technology use, and easily in a way Congress never intended.  One should also never presume that the outcome of a civil dispute correlates to a result that is truly fair and just; miscarriages of justice happen all the time, often simply because it is often so difficult and expensive to properly defend against a lawsuit, especially one asserting a claim from such an imprecisely-drafted and overly broad statute like the CFAA.

The reality is that plaintiffs often abuse the judicial process to bully defendants, and that brings us to the second subject of this post, Prenda Law, which is currently being exposed, judicially and publicly  as one of the biggest bullies on the block.  But why should we care here?  Because although Prenda has most notoriously exploited the Copyright Act for its legal attacks, it has also showed itself ready, willing, and able to abuse the easily-abusable CFAA in order to enrich itself as well. Continue reading »