After Objection, Wyden to File Alternative Bill to Copyright Tribunal Legislation
Sen. Ron Wyden, D-Ore., is crafting alternative legislation to a bill that overwhelmingly passed the House and would create a voluntary small claims board within the Copyright Office (see 1910230025), a Wyden aide told us. He and frequent partner here Sen. Rand Paul, R-Ky., recently placed holds on the Copyright Alternative in Small-Claims Enforcement (Case) Act (HR-2426/S-1273), according to aides.
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In his objection, Wyden said he agrees small copyright owners are “are less likely” to reap the full benefits of the copyright system than major corporations like Disney or Sony. But he said the bill would “create an extrajudicial, virtually unappealable tribunal that could impose statutory damages of $30,000 on an individual who posts a couple of memes on social media, even if the claimant sustained little or no economic harm.” The threat of litigation could stifle fair copyright use and free expression and enable copyright troll harassment, he said. Reached Thursday, Wyden didn’t comment on the Case Act. Paul’s office didn’t comment.
Bill sponsor Sen. John Kennedy, R-La., told us of “two headaches" in the Senate Thursday. “We’re working on it. I’m going to make them an offer they can’t refuse,” he said, declining to offer names.
Wyden and Paul placed holds after the bill was hotlined in the Senate, according to a Senate aide. The hotline process, an attempt to reach unanimous consent, allows opportunity for senators to object behind the scenes. Wyden took a similar approach in amending a bill during passage of the Music Modernization Act in 2018 (see 1809180057).
Hopefully, objections get resolved, the Senate aide said: “It’s not a certainty, but that is the hope, particularly with how overwhelming the House vote was. ... We think this is a strong bill and ultimately something that’s going to pass.” Staffs are scheduling a regular call to talk about the path forward, potentially this week, the aide said.
Public Knowledge, the Center for Democracy and Technology and American Civil Liberties Union objected to the bill. They argued the legislation hasn’t received proper vetting, citing a lack of hearings and chance for public comment.
The bill has had plenty of time for review, since it was first introduced in 2017, said Copyright Alliance CEO Keith Kupferschmid. He noted the bill is also partly the result of Copyright Office recommendations, and a hearing on the bill was held about a year ago. It got attention at both recent CO oversight hearings, he said. “The few remaining groups that don’t support the bill are those groups that will never support the bill or never support any bill that helps the copyright community.” Kupferschmid cited philosophical differences.
Re:Create Coalition Executive Director Josh Lamel accused the other side of fear-mongering. There’s no question there are small copyright owners who have been wronged and want better legal recourse, he said. But the legislation as written raises concerns about copyright trolls and constitutionality. The 7th Amendment guarantees a trial by jury for civil disputes over $20. “We’re trying to find a way to do a constitutional small claims court,” designed in a way that prohibits trolling activity and keeps costs low, Lamel said.