By Kevin Smith

Farewell to Justice Stevens

As it did for so many people, the passing last week of Justice John Paul Stevens saddened me, and caused me to reflect on his remarkable tenure.  It is curious to realize that, at his confirmation hearing, his health — he had recently had bypass surgery — and his ability to serve a “full” term on the Supreme Court was an issue.  He went on to serve for nearly 35 years and was just short of 91 years old when he retired.

For me, Justice Stevens provided my first acquaintance with Supreme Court jurisprudence, since his ruling in Sony v. Universal Studios, 464 U.S. 417 (1984), was the second copyright decision I ever read.  The first was the 1996 opinion of the 6th Circuit in Princeton University Press v. Michigan Document Service, and it was my gut feeling that that case was wrongly decided that sent me back to Sony and Justice Stevens, then on through a series of explorations of copyright issues, and finally to law school.  So while, like most Americans, I have Justice Stevens to thank for my TV watching habits, I also think of him as at the beginning of what has been a marvelous journey for me.

Many of the memorial articles to Justice Stevens do not mention the Sony decision, so I want to recommend this Washington Post piece which, while it is a little bit flippant, does pay attention to what may be John Paul Stevens’ most lasting gift to America.  It is worth noting, I think, that while the impact of many court decisions wane over time, Sony has grown more important over the years, because it provides a pathway for copyright to adapt to changing technologies.

Free Lunch for Trolls

Earlier this week, I started writing a post about Senate bill S. 1273, the Copyright Alternative in Small-claims Enforcement (or CASE) Act of 2019. The Senate Judiciary Committee was about to mark up the bill, which includes voting to report it out to the full Senate, and I wanted to explain why I think the bill is a bad idea. Before I could finish my post, however, Stan Adams wrote this important piece for TechDirt that makes many of the points I had intended to make. So instead of repeating much of the same arguments, I decided the my most important task was just to make sure that readers of In the Open were aware of Adams’ excellent post.

Adams does a nice job of explaining where the legislation stands, and why it should not be enacted as currently written.  I really encourage folks to read his post, and will add just these three summary points about the potential negative effect of the CASE Act:

  1. First, the Case Act would disconnect statutory damages from the mechanism of copyright registration.  That is, one could file, get a judgment, and collect statutory damages for a claim in the new “small-claims” copyright court without having to register.  Rights holders in unregistered works, if the tribunal found they had been infringed, would be able to collect up to $15,000 in statutory damages.  So the incentive to register, which can help prevent infringement by making it easier to find a rights holder from whom to seek permission, would be undermined.
  2. Second, the CASE Act would increase nuisance claims.  Because statutory damages would not be dependent any longer on timely registration, and because the barriers to bringing an infringement suit would be lowered, lots of people fishing for settlements — both real copyright trolls and rights-holders just “trying their luck” on weak claims — would be emboldened to send demand letters.  Such letters are common for libraries and universities; they are time-consuming and expensive to deal with, even though most come to nothing in the end.
  3. Which brings me to my final point, the chilling effect on fair use that the CASE Act is likely to have.  Fair use is the proper response to many of those nuisance letters, and if they increase, the burden of exercising fair use will also go up.  And more librarians and teachers will likely be discouraged from even considering fair use, if statutory damages are more easily available through this streamlined “small”-claims system, since $15,000 is not a small amount at all to  many of them.

The CASE Act is intended to address a real problem — the cost of litigation in federal court — but, in this case, the remedy is worse than the disease.  For all the reasons given above and in Adams’ post this legislation, which has now been sent to the full Senate without any recommended changes, would undermine the core purpose of copyright law.  It would discourage new creativity while benefiting the legacy content interests, which does not “promote the progress of science and the useful arts.”

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

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