EFF Sides With Goliath (again) in Opposition to CASE Act

Now that the bill creating a small claim provision for independent authors of works is making progress in Congress, EFF has pivoted to its standard late-stage strategy whenever they try to kill legislation: the dissemination of scare-mongering bullshit. I do not mean that I disagree with them. There are not two sides to the story they are telling or considerations about which well-meaning parties can disagree. I mean the EFF is just plain lying when they try to scare people into believing that “Life-altering lawsuits could come to regular internet users” as a result of the CASE Act. No they bloody-well cannot.

The narrative being pushed by the EFF is that the small-claim provision will make litigation so easy for claimants, that more copyright owners will go after more regular folks. They want me to believe this means a higher probability that if my kids, for instance, share memes with photographs, I could be liable for damage awards that would indeed be damaging to my ordinary income.

But as explained in previous posts (because one can actually read the bill), CASE does not make enforcement so easy that rightsholders are suddenly going chase down every innocuous use of their works looking for quick payouts from ordinary users. For instance, rightsholders are limited in the number of claims they can file by both statute and their own resources. So, as a matter of common sense, if you could only file so many claims at a time, are you going to pick the handful of commercial users who should have licensed your work, or are you going to try to file against hundreds of users who might have shared some meme that was made out of your work?

Then, of course, there is that nagging little detail that the small claim tribunal is a VOLUNTARY alternative dispute resolution procedure. How can a process that is VOLUNTARY possibly result in what the EFF is alleging? Any notice served must prominently state that the tribunal is voluntary, and this will be repeated by the Copyright Claims Board when it sends its notice. I am always amazed that organizations like EFF, who claim to defend the internet, seem to think that this kind of information is not available to ordinary people via the internet. One might almost think the organization is behaving like…what do they call them?…gatekeepers?

The EFF presents itself as a crusader standing up for ordinary people against the powerful, whether that power is held by public or private institutions. Yet, their dishonest portrayal of the CASE Act is further evidence that their defense of the “little guy” does not seem to include all the defenseless victims of the digital age. The fact that their definition of the “little guy” does not embrace the working photographer who gets ripped off is no surprise, of course. After all, they do not even consider victims of harassment, revenge-porn, or trafficking to be worthy of so much as a conversation about altering Section 230’s immunity for web platforms that profit from these crimes.

By now, it is clear to most people that the internet creates new opportunities for bad actors just as it creates new opportunities for good ones. The EFF is not responsible for this unavoidable condition, but they do appear to have chosen sides, consistently determining that certain victims are worth sacrificing for what they have determined is the “greater good.” Who put them in charge of making that decision is a solid question, but it is hard to miss the fact that the “greater good” does frequently align with the interests of the major internet and high-tech corporations.

On the other hand, maybe the EFF is not the Silicon Valley shill that many have accused the organization of being. Maybe they sincerely believe what they are saying about the CASE Act and are not liars so much as they are merely incompetent. Either way, it’s scare-mongering bullshit. And don’t we have enough of that on the internet? Including more than a few of those precious memes the EFF is so worried about.

© 2019, David Newhoff. All rights reserved.

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