Editor’s note: David S. Levine is Professor, Elon University School of Law

ELON – Last Monday night, Congress introduced and passed new and significant copyright law, sponsored by NC Senator Thom Tillis, Chairman of the Senate Judiciary Committee’s Subcommittee on Intellectual Property. Tucked into the 5000+ page “must pass” emergency omnibus government funding legislation were two unrelated copyright bills that you’d never know were there, unless you searched for them.

One, innocuously titled “Unauthorized Streaming,” but colloquially known as the “felony streaming” legislation, authorizes up to 10 years in prison for illegal streaming of copyrighted works like films and music.

The other, with the name “Copyright Small Claims,” known as the “CASE Act,” creates a likely unconstitutional tribunal within the Copyright Office to handle low-value copyright infringement claims.

David Levine

With President Trump’s approval late last night, they will now become law, but they should not have gotten this far, this quickly. These are significant changes with broad impact and wide potential consequences for all who use the internet. They deserved proper discussion, debate, and consideration. Unfortunately, they were not given the broad analytical attention that they deserved, or the public discussion that is warranted when liberty is put on the line.

The “Unauthorized Streaming” legislation was “released” by Senator Tillis less than three weeks ago. It harkens back to the Stop Online Piracy Act (SOPA), Congress’ last failed effort to take a bludgeon to copyright law under the banner of protecting content creators from the internet. According to Senator Tillis in his press release announcing the bill, it purports to apply “only to commercial, for-profit streaming piracy services.” However, the actual language used is sufficiently vague that it raises questions as to the breadth of its application. Putting aside the Draconian possibility of a 10 year prison sentence for violating a copyright owner’s rights, the language raises significant concerns about criminalizing new technologies and a wide range of entities.

The CASE Act, although available for review for a longer period, is an equally broad and consequential enactment. It creates the new “Copyright Claims Board” in the US Copyright Office where parties may “voluntarily seek to resolve” low-value copyright disputes. But while seemingly helpful, the proposal may be unconstitutional, and could become an avenue for copyright trolling and nuisance lawsuits by those seeking a quick settlement. The CASE Act also raises significant problems for copyright owners and alleged infringers alike, due to the absence of due process and other procedural guarantees.

These bills did not address emergency “must pass” problems but burying unrelated controversial language in “must pass” legislation is an old Congressional trick. Using this process, the sponsors knew that no meaningful discussion, hearings, or debate would occur. That was the intention. As a result, lobbyists, those who know Congressional staff, and particularly the entertainment industry’s moneyed interests, got “most favored nation” status, yet again.

Senator Tillis, having been recently re-elected to another six year term, had the luxury and power of practicing good government. Because these bills apparently had wide bipartisan support, the sponsors should have had the courage to allow the public the opportunity to become familiar with their language, benefits and drawbacks. Instead, as has become common in Congress, we experienced an intentionally rushed process that achieved its sponsors’ desired result: passage of consequential law before it could be widely debated, discussed, improved, and opposed.

We’ve been down this legislative road before. It usually does not end well. Americans deserve much better from their elected officials.