The ACLU and the CASE Act: Free speech or a free for all?
© Greg Nash

As hundreds of thousands of independent creators across the country are aware, there is a much-anticipated bill on the horizon called the CASE Act, legislation that they are counting on Congress to pass as quickly as possible. The CASE Act, now co-sponsored by more than 100 members of Congress, proposes the creation of a “small claims tribunal” within the United States Copyright Office where creators can defend and protect their copyrighted works. Why is something like this necessary? Because individual creators such as visual journalists going to federal court to defend their work against copyright infringement is cost prohibitive, leaving those creators with a right but no remedy.

Despite the fact that the CASE Act has been discussed for years, the American Civil Liberties Union (ACLU) announced only recently its interest in amending the bill under the guise of concern regarding due process and freedom of speech. The organization that I represent – the National Press Photographers Association (NPPA) – serves as the Voice of Visual Journalists and, since 1946, has advocated for freedom of the press and speech. As someone who takes these rights and freedoms very seriously, I am disheartened that the ACLU has framed its concerns under such pretexts. Furthermore, it’s discouraging that it chose to wait until the 11th hour to intercede versus participating in a meaningful dialogue with the Copyright Office, legislative staff members, creators, and other stakeholders that have been working on the bill for the past decade.

While it’s appreciated that the ACLU acknowledges independent creators face a daunting problem regarding protecting their works, and while it doesn’t oppose the idea of creating a small claims process, the concerns it’s voicing about the bill – most of which have absolutely nothing to do with free speech or due process, and more to do with its donors’ wallets – are frustratingly dishonest. Under the CASE Act, anyone notified of an infringement claim can simply and easily opt-out if they don’t want to participate in the process outlined by the bill. Free speech and due process are about giving people the right to choose. To speak or not to speak. To participate or not to participate. That is exactly what the CASE Act does.

Everyone would benefit if the ACLU and its ilk spent just a small portion of its time, money and energy attempting to inform and educate the infringers whose rights they are so concerned about versus creating public hysteria regarding the CASE Act through misinformation and fear-mongering, while demonizing anyone with the audacity to enforce their copyrighted works.

As the NPPA pointed out in comments to the Copyright Office as far back as 2012, our images and videos serve as a valuable tool to help viewers understand the world around them. We believe that freedom of speech is an inalienable right for journalists, who dedicate their time and skills to cover events that are important to viewers on a community, city, state, and national level. At times, they even put themselves at risk to actively seek out the truth and provide honest and transparent reporting. We respect creators in the field of journalism, and we want to ensure that they get access to the rights they need to remain solvent.

But as media outlets continue to trim staffing, an unprecedented number of our members have found themselves working as independent contractors, making a living by licensing their images and footage. And as more creators become owners and operators of small businesses, copyright infringement has continued to take a debilitating toll on those who must police infringements while simultaneously seeking and fulfilling photographic assignments.

It’s an untenable situation for creators to face, to say the least, and it shouldn’t continue. The bottom line is that anyone notified of a claim can simply and easily opt-out if they do not wish to participate in this copyright infringement process. It’s one thing for the ACLU to advocate for free speech and quite another to promote a free-for-all (in the literal and figurative sense) when it comes to copyrighted works.

To help visual creators (and all creators and artists who work hard to make a living) get a fair shot, I respectfully urge everyone with decision making power to disregard the last minute and unsubstantiated concerns raised by the ACLU, and pass the CASE Act in order to provide a viable remedy to copyright infringement.

Mickey H. Osterreicher is the General Counsel for the National Press Photographers Association