The latest US COVID-19 stimulus bill is the perfect vehicle for passing unrelated legislation, because concessions will be made to avoid holding up money for the public—even if it’s not nearly enough money. As a result, Congress isn’t simply voting for or against a $600 per person stimulus package, unemployment benefits, and other acts related to COVID-19 relief today. It’s voting for a massive government funding plan that includes thousands of pages of unrelated legislation, including some important changes to online copyright law.
The change most relevant to you, as a person who plays games and uses the internet, comes in an act called CASE, but I’ll start with a different copyright-related part of the bill, because it’s being misunderstood in some cases. 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—parts of which will doubtlessly exploit laws 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 a site called “ultrastreamz5431.biz” which illegally broadcasts UFC fights, you could be convicted of a felony punishable with a maximum of 5 years in jail for a first offense.
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 even accomplish that. And there’s more.
This is why Congress needs time to actually read this package before voting on it.Members of Congress have not read this bill. It’s over 5000 pages, arrived at 2pm today, and we are told to expect a vote on it in 2 hours.This isn’t governance. It’s hostage-taking. https://t.co/JpBbEHHkVGDecember 21, 2020
The copyright legislation that’s immediately relevant to the average person is the CASE Act, which was jammed into the package just under the felony streaming section. CASE has been around for a while, and it stands for Copyright Alternative in Small-Claims Enforcement.
What CASE 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, the $600 stimulus checks and other COVID-19 relief acts, the package contains reams of other legislation—it’s over 5,500 pages long. “This isn’t governance. It’s hostage-taking,” said Democratic Representative Alexandria Ocasio-Cortez.
You can see the entire text of the “Consolidated Appropriations Act, 2021” here. Congress votes on the spending package tonight.