Lawmakers are cramming controversial copyright provisions into a must-pass spending bill

Lawmakers are cramming multiple controversial copyright provisions into a must-pass spending bill at the eleventh hour, stirring up pushback from tech companies and civil liberties activists who say they're skirting proper procedure in order to create a system that's vulnerable to abuse.

The House and Senate Judiciary Committees have agreed to include a package of three provisions — the controversial CASE Act, the Trademark Modernization Act and a felony streaming proposal — in the omnibus spending bill, which must pass before a Dec. 11 government shutdown deadline, according to two congressional aides.

A group of 18 organizations, including tech trade groups, advocacy organizations and multiple library associations, are urging congressional leadership to decline to include the provisions, according to a letter obtained by Protocol on Friday.

"We respect Congress's intent to improve our intellectual property system and protect the rights of creators and entrepreneurs," the groups, including the Internet Association, the Electronic Frontier Foundation and American Library Association, wrote. "However, certain aspects of this package of bills will have negative impacts on small- and medium-sized businesses, creators, libraries and their patrons, students, teachers, educational institutions, religious institutions, fan communities, internet users, and free expression."

Congress is still hashing out the contours of the spending bill, and they're running against a tough deadline as they negotiate over broader questions, including whether the bill should include COVID-19 relief spending.

But it's the closest Congress has come to actually passing the CASE Act, legislation at the center of a battle between Big Tech and rights holders. Supporters, including the Copyright Alliance, say the legislation would make it easier for independent artists to bring claims without going through federal court. Under the current system, victims of copyright violation have no cost-effective way to get compensated for their work when it's used without their permission. The CASE Act would create a quasi-judicial body in the Copyright Office to award damages up to $30,000 to copyright holders who find their creative work being passed around online.

But critics of the bill insist the CASE Act would just set up an easier system for copyright trolls to exploit without any ability to appeal. The Electronic Frontier Foundation has warned that the legislation could "ruin the lives of regular people; people who are engaging in the things we all do when we're online: sharing memes, sharing videos, and downloading images."

"Passing the CASE Act without reforms will unleash a host of lawsuits against innocent internet users and restrict their ability to defend themselves against trolls," said Democratic Senator Ron Wyden in a statement to protocol. Wyden previously tried to negotiate with Senators John Kennedy and Dick Durbin to figure out a different path forward on the CASE Act. "It is tremendously disappointing that powerful lobbying groups may be close to attaching this flawed legislation to a must-pass spending bill without commonsense changes to protect Americans from predatory copyright trolls."

The Trademark Modernization Act, meanwhile, would crack down on the increase in fraudulent trademark filings from foreign countries including China. It would give the U.S. Patent and Trademark Office more flexibility to crack down on illegitimate trademark claims — while also creating a new opportunity for so-called "trademark trolls" who make money off of registering trademarks without intending to use them. That legislation hasn't passed the House or the Senate.

And the final provision, Republican Sen. Thom Tillis' felony streaming proposal, has not yet been introduced as legislation. But the proposal would provide the DOJ with the authority to charge commercial enterprises that are streaming certain kinds of works with felony copyright infringement, a primary concern for professional sports organizations and the powerful Motion Picture Association.

The three provisions are likely being tied together in order to create a coalition of rights-holders against the proposals' many critics, said one tech industry source.

"All signatories have serious concerns with at least some aspect of the bills slated to be included in their current state, and we stand ready to work with Congress to avoid their unintended consequences," the letter reads.

The House Judiciary Committee and Senate Judiciary Committee did not immediately respond to requests for comment.

"This backroom deal to empower copyright and trademark trolls as part of a must-pass bill would have sweeping negative consequences for the entire internet ecosystem," said Mike Lemon, a senior director with the Internet Association, which represents the Silicon Valley giants. "Copyright and trademark reform are important policy issues that warrant fulsome, measured debate. Jamming such significant measures into a government funding bill is bad policymaking."