September 25 roundup

  • “Small claims court for copyright” idea, now moving rapidly through Congress, could create a new business model for troll claimants [Mike Masnick, TechDirt; EFF on CASE Act] A contrasting view: Robert VerBruggen, NR;
  • “If Boston is weirdly NOT full of good restaurant/bar/cafes for its size, and if people don’t want to stay after they hit 26 or so, these throttled [liquor] licenses are one of the real structural reasons why.” [Amanda Katz Twitter thread]
  • Push in California underway to join a trend I warned of five years ago, namely states’ enacting laws to encourage tax informants with a share of the loot [McDermott Will and Emery, National Law Review]
  • Baltimore food truck rule challenge, single-member districts, sexting prosecution, and more in my new Free State Notes roundup;
  • “For years the Westchester County DA, Jeanine Pirro, now a Fox News host who opines on justice, rejected Deskovic’s requests to compare the DNA evidence against a criminal database. Deskovic was not exonerated until 2006, after he had served 16 years” [Jacob Sullum, Reason]
  • Come again? “Louisville judge rules Kentucky speed limit laws unconstitutional” [Marcus Green, WDRB]


  • The CASE Act, terrible for the public, also sounds bad for the Facebook model, driving away users. If a single instance of retweeting someone else’s photo or post, or posting any photo of your own that might include copyrighted material in the background, or any quote (even embedded in your own composition), can set you up for thousands of dollars in automatic damages, why play with Facebook? Playing on the freeway might offer better odds.

    Facebook could dramatize this to users by blacking out screens, the way tech companies did to mobilize opposition to SOPA several years back. Apparently, however, Facebook does not want a new fight with the legacy-entertainment and plaintiff’s-bar interests behind CASE. Facebook can still make money in an insipid centralized broadcast environment like what we had in the 1970s, as long as competitors are prevented from offering something better.

  • If CASE passes, I see trolls buying up Facebook accounts by the millions, perhaps on a profit-sharing basis. Everything you photograph, write, or compose is automatically copyrighted, though it has not occurred to you to abuse it. One safeguard has been a requirement to register a work before you can sue for infringement, but CASE would remove the registration requirement.

    Some questions:

    Will it be possible for a Facebook poster to rescind a trolling agreement, after he finds all his friends and relatives ostracizing him? (After one of them got stung with a four-figure CASE judgement.)

    (CASE would not require registration, but…)
    How easy is it to find out if a photograph has been registered for copyright? Does one have to manually go through millions of registered photos looking for a match, or is there an automated process?

    • “One safeguard has been a requirement to register a work before you can sue for infringement”

      No, there is no such requirement. You can sue without a registered copyright, but it limits the type of relief you can ask for. In any copyright suit you can ask for actual damages or statutory damages (plaintiff must pick one or the other up front, can’t leave it to the judge / jury or ask for both), injunctive relief can also be asked for. The only thing that requires registration is statutory damages. An then, you don’t just have to register before filing suit, the copyright needs to have been registered before the alleged infringement took place.

      On the other and you can sue for copyright infringement and seek either an injunction or actual damages instead of statutory damages and the copyright doesn’t need to be registered at all.

      • MattS, yes there is such a requirement. I refer you to 17 USC 411(a):

        Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.