The Flaws of the CASE Act and Christmas Tree Bills

Elianna Schimke, Staff Writer

A few years ago, the issue of Net Neutrality was talked about everywhere because it fundamentally threatened the way we use the Internet. Since then, there have been numerous less-discussed issues that pose threats on similar levels, including the 2019 Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act). 

This bill has been proposed as a way for copyright owners to file infringement claims; this would be done through a Copyright Claims Board that would hear small claims and take them out of federal courts. In theory, the system would provide a more financially accessible alternative for creators to protect their copyrighted works. However, it has received harsh responses from groups such as the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). Criticism of the CASE Act is mainly due to its potentially unconstitutional nature, and the threat it poses to people’s right to reasonably use copyrighted content in a non-commercial way. 

There is a need for copyright reform in the US, but the CASE Act is not the way to do it. This bill may seem well-intended, as it aims to help creators protect their intellectual property and avoid expensive federal court litigation, but there are far too many pitfalls for it to actually be beneficial in practice. This bill could seriously hurt the average Internet user by allowing copyright holders to allege infringement, even when copyrighted material is shared for personal use and not intended to steal from creators. 

According to the ACLU, “the CASE Act could affect every person that communicates online”, and changes to the bill are needed to “ensure adequate safeguards for due process and the protection of the freedom of speech.” 

One specific issue with the proposed legislation is that it is opt-out (instead of opt-in), meaning that alleged infringers would have to take action to deny allegations. There would inevitably be infringers unaware of the case or ignoring it, leading to default judgments and damage awards. This provides a system for ‘copyright trolls’ to take advantage of people who are unaware they are using copyrighted material or may not know how to defend themselves in a case of seemingly trivial infringement. 

The ACLU noted that “Many of these cases will be legitimate. However, some will not, and others, even if brought in good faith, may be defensible as fair use or for some other permissible reason.” 

Although this bill aims to protect intellectual property, the current version is filled with legal and practical issues that lawmakers need to consider.

Outside of the abuse concerns, there is also the issue that the bill is likely unconstitutional. It would route around Title III courts and bring private rights disputes to the executive branch, potentially violating Article III of the Constitution. 

Recently, Justice Clarence Thomas clarified that Congress has the “latitude to assign adjudication of public rights to entities other than Article III courts,” but not private rights.

 There is a complicated distinction between private and public rights, so it is difficult to determine whether the CASE Act is unconstitutional without in-depth debate. However, the necessary debate is not allowed when this bill is snuck into must-pass spending legislation. 

To better understand the process of a bill becoming law and the practice of combining unrelated amendments in our partisan government, I interviewed Michael Rosow, who currently works as a litigation attorney. 

The concept of a bill may sound like a good idea, but according to Rosow, “what’s not so good is that they’re not having a full discussion on the merits of this kind of a bill, but are just tacking it on to something else.” 

The CASE Act has been put into a must-pass government spending bill, even though addressing controversial copyright law is not even remotely related to the rest of the legislation. The fact that this bill had to be snuck into a must-pass bill in order for it to pass shows that it is not a good piece of proposed legislation. Sneaking a bill into a larger piece of legislation is fairly common, and there is a name for it: Christmas tree bill. This term refers to the proposed legislation being subject to Congress members ‘hanging’ their own amendments in it; it is a bill that often contains many unrelated amendments, which may benefit certain groups or interests. 

While this practice may sometimes be necessary to pass good bills with our partisan government, Rosow explained that, with such an amendment unrelated to the legislation as a whole, “the committee that has experience dealing with [the specific type of law] may not have an opportunity to speak up on what’s going to happen with the law, so it can have unintended negative consequences.” 

The ACLU has asked Congress to “decline to include the CASE Act in the upcoming funding bill and instead allow that provision to proceed through regular order where Members will have an opportunity to address the significant concerns raised by the bill before it passes into law.”
The supporters of this bill should be able to discuss the issues and debate them fairly, yet by slipping them into a must-pass bill, it shows that they know that they can not actually defend it, so they need to essentially cheat to make it law. 

With copyright law, it is nearly impossible to please everyone and prevent the abuse of loopholes. It is also extremely difficult to create a fair system for content consumers, creators, and large corporations. However, these challenges do not excuse the passage of bills that are clearly flawed and receive such strong opposition. The complicated nature of copyright and fair use means that it is even more important to foster meaningful discussion amongst the people who are creating and voting on the legislation. Despite this, the CASE Act is being added to an unrelated must-pass spending bill, so it has not received the attention it needs. When it comes to protecting first amendment rights and preventing corrupt legislative practices, citizens must be aware and speak out against bills like the CASE Act that are rushed and have the potential to change everyday life.