Making Sausage: How the CASE Act Finally Became Law

To kick-off 2021, which we all hope will be a better year than the last annus horribilis, let’s look back at one of the closing chapters of 2020, the last minute passage in the US of the COVID-19 relief package and government funding bill which was finally signed into law by Donald Trump on December 27, 2020. While of primary interest to many Americans because of the COVID relief payments contained in the bill, it also included an important piece of copyright legislation, the CASE (Copyright Alternative in Small-Claims Enforcement) Act. How this welcome legislation ended up being included in the year-end spending bill is part of the “meat-grinder” story of US politics. It started with an individual Senator.

One of the unique features of the US congressional system is the power that elected members of Congress exert over the legislative process, unlike the Westminster system that readers in Canada, the UK, Australia, New Zealand, and India (among others) will be familiar with. Under the Westminster model, the executive branch, aka the “government”, usually controls the legislative branch (Parliament) through an elected majority or coalition. Once legislation has been introduced by the government, it is normally passed by Parliament and becomes law subject to the normal process of review through an all-party committee–which in most cases is dominated by government members. By contrast, in the US system there is no guarantee that legislation desired by the President will become law.  Congress is not easily controlled, especially if one or both Chambers of Congress are dominated by a party different from that of the President. Given the US system of checks and balances, as we have seen when an executive branch (Administration) does not control the legislative (Congress) branch, all sorts of things can happen—or not happen. Just ask Barack Obama.

Moreover, individual Members of Congress–normally Senators of long-standing–have far more power than individual Members of Parliament in a Westminster system. They can hold up legislation by placing a “hold”, thereby preventing it from reaching the floor for a vote (assuming they have the support of their Senate leader), or broker deals to add amendments to a piece of legislation or even add unrelated legislation to a “must pass” legislative bill, tacked on as a free rider. Usually the free riders are bills that have been unable to get legislative traction for one reason or another yet are sufficiently unobjectionable that their passage as part of a larger, important spending bill (which usually has bipartisan support by the time it goes to a vote) does not become a make-or-break issue. It is standard practice that many extraneous bills are added as “decorations” to the annual year-end spending bill, and 2020 was no different.

Assuming passage in both Chambers of Congress, there is one more step before a bill—with all its “decorations”—becomes law. It goes to the President for signature. The President can sign, not sign, or veto the bill. While it may seem strange, there is a distinction between not signing and vetoing. If the President does not sign a bill (but does not veto it), it still automatically becomes law ten days (excluding Sundays) after it has been physically conveyed to the White House. However, if the President vetoes the legislation by sending it back to Congress, it is blocked–but can still become law if the veto is overridden by a two-thirds majority vote in each Chamber, with both the House and Senate needing to sustain the override. So much for the civics lesson for those of you who have forgotten, or never knew, the arcane details of how the US system works.

So how does all of this relate to copyright? The history of the CASE Act is an illustrative example of how a determined and obstinate Senator can block the expressed will of both Chambers of Congress, but also a lesson in how a strategic move by supporters of the Act finally succeeded in getting it passed by attaching it to 2020’s critical year-end money bill, thus getting it through the meat-grinder and bypassing the obstruction of one Senator, Ron Wyden of Oregon.

The CASE Act may not be much of a household word to creators and those interested in copyright outside the United States, but in the US it is a welcome and important step forward in allowing smaller creators to deal with copyright infringements of their works without having to resort to expensive court procedures. Think small claims court for copyright holders. The CASE Act will establish a Copyright Claims Board within the US Copyright Office where small claims can be adjudicated. Claims Board findings will not be binding and can be appealed to the courts, but nonetheless will offer an important alternative to expensive litigation. The Act has been opposed by several anti-copyright groups, such as the Electronic Frontier Foundation, Public Knowledge and other “usual suspects”, who have attacked it on the basis that it becomes easier for copyright owners to file infringement claims. This is perfectly true, and is precisely the point of the legislation, which is to level the playing field for small creators. There are several limitations to prevent any supposed “abuse” of process, such as limits on the amount of damages that can be claimed ($15,000 per work and $30,000 per claim) as well as an opt-out for the accused infringer who has the option of declining to participate in the process, instead resorting to litigation.

The legislation in its present form was introduced into the House of Representatives in May, 2019 and in October of that year passed overwhelmingly by a bipartisan vote of 410-6, with 15 abstentions. A companion bill was introduced in the Senate sponsored by both Republican and Democrat Senators and was approved unanimously by the Senate Judiciary Committee. At that point, Senator Ron Wyden (D-ORE) placed a “hold” on the Senate bill, stopping it in its tracks and preventing it from moving forward until he released his hold. Wyden claimed that he was not opposed to the Bill per se but had concerns with some of its provisions. For example, he claimed the ceiling of $30,000 was too high, that minors posting memes could be targeted, that the small claims process would stifle fair use, and on and on. All these and other points were effectively and carefully rebutted in detailed post written by Terrica Carrington of the Copyright Alliance, which along with many other creative and pro-copyright groups, supports the legislation. Negotiations were undertaken with Wyden’s office over a period of several months to try to reach a compromise, but it became clear that he was not really interested in finding a solution. A group of professional photographers in Oregon even tried to shame Wyden, putting up a billboard in Portland in January of 2020 that asked “Why are you holding Oregon creators hostage?” Wyden would not be moved.

Fast forward to late December 2020 and the Congressional impasse over approval of the $900 billion COVID-19 relief bill, a piece of legislation with 5,593 pages, apparently the longest bill ever. Along with provisions that would provide immediate financial relief to American families and businesses, it included a $1.4 trillion spending bill to keep the US Government going, and a host of other measures bundled into the year-end legislation. The CASE Act was one of the add-ons, along with a number of other pieces of added legislation. The New York Times reported that among the additional items was legislation regulating horse-racing, a pet project of Senate Majority Leader Mitch McConnell from Kentucky, as well as measures as varied as eradication of murder hornets,  control of online sales of e-cigarettes to minors and authorization of federal land for the construction of the Teddy Roosevelt Memorial Library in North Dakota.

The Consolidated Appropriations Act, 2021, with all these inclusions, finally passed in the Senate near midnight on December 21 by a vote of 92-6 and in the House by 359-53. Such bipartisan action is rare in Washington these days, but the clock had run out both on funding the US government as well as getting needed relief during the COVID-19 pandemic to US families. After the key compromises on spending were worked out between the Republican and Democrat congressional leadership, the Bill passed quickly with little scrutiny. Donald Trump threatened to veto it for various reasons (none related to the Case Act) but in the end, he signed.

How much attention was paid by legislators to the “add-ons” such as the CASE Act and others? It’s fair to assume that not a lot of attention was paid to many of the add-on provisions in the dying days of the “Lame Duck” session in December 2020, but with respect to the CASE Act there had already been plenty of scrutiny over a number of years, as well as thorough review in Congress when it was first introduced. It hadn’t progressed legislatively because, as pointed out, it had become hostage to the individual agenda of one Senator despite widespread support. With its passage, there were the predictable “sky is falling” claims from anti-copyright groups, who criticized the legislative process as well as the legislation itself, but in the end the will of Congress was enacted through the omnibus mechanism of the Consolidated Appropriations legislation. The US Copyright Office, which has supported the CASE Act proposals since release of its own detailed study of the issue back in 2013, will now be required to establish detailed procedures to implement the legislation.

While omnibus bills are arguably not the most transparent legislative procedure for getting things done, they are increasingly being used, and not just by the US Congress. In Canada, the previous Conservative government of Stephen Harper had a proclivity for bundling many unrelated issues into omnibus finance bills. Critics claimed that this tactic made it impossible for Parliament to adequately scrutinize legislation. Indeed, the Harper government passed the last amendment to Canada’s Copyright Act, a provision that extended the term of copyright protection for sound recordings from 50 years after release to 70 years, in the 2015 omnibus finance bill. Despite criticism from opposition parties at the time, the subsequent Liberal government of Justin Trudeau has also resorted to omnibus legislation, with a budget bill that included legislation related to immigration, food and drug regulation, parks and indigenous services, and other unrelated items. Given the delays that legislatures often face today owing to legislative backlog, as well as the increasing inability to find bipartisan solutions as is evident in the US Congress, bundling legislation is becoming an increasingly common means of getting things done.

Was inclusion of the CASE Act provisions in the year-end spending bill the ideal legislative solution? That probably depends on your perspective. It has been said that politics is the art of the possible, so if Ron Wyden was justified in using the rules to block a piece of legislation that he didn’t like, proponents were equally justified in harnessing the rules to achieve their objective. The creative community in the US, which struggled for years to bring something like the CASE Act into being, was delighted with the outcome. Ron Wyden, who saw his one-man “hold” tactic defeated, probably less so.

Otto von Bismarck is reputed to have said, “Laws are like sausages. It’s better not to see them being made.” This particular sausage took a long time to get made, but in the end it emerged intact from the meat-grinder. It is now part of the menu; a welcome additional measure to help the creative community in the US protect its rights against widespread copyright infringement through what the Copyright Alliance describes as, a “voluntary, inexpensive and streamlined alternative”. That’s pretty tasty sausage.

© Hugh Stephens 2021. All Rights Reserved

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