Polk's point about the basic structure of copyright law -- define "infringement" very widely and then rely on the expense of enforcement to constrain the system's impact -- is correct. And it illustrates why the CASE Act should worry us. 1/ https://twitter.com/ProfPolkWagner/status/1341430421553352706

CASE holds out the prospect of (a) a *very* low-cost but quite technically complex enforcement measure, where (b) significant statutory damages (up to $30k) are available. This is a formula that will attract copyright trolls. 2/

The complexities of CASE's "small claims" mechanism ($30k is a small claim?) will deter a lot of individual copyright owners. But copyright troll lawyers will master and use the system. It is likely to end up being for them. 3/

Defenders will say "but users can opt out of the CASE mechanism!" Sure, and sophisticated parties targeted with CASE notices will. The people who end up in CASE will be the unsophisticated. These are exactly the people the trolls *want* to target and CASE gives them the tool. 4/

Defenders will also say "but CASE empowers the Copyright Office to curb abuse!" It will be interesting to see what the Copyright Office does with that power. But remember: trolls are looking for default judgments -- I.e., judgments against parties who don't show up. And ... 4/

... I'm not holding my breath for the Copyright Office to intervene or refuse to grant judgments in cases where the targeted parties aren't even in front of them to complain. It's possible that might happen in a truly *extreme* case -- like ... 5/

... if a Richard Liebowitz-type troll -- one who is both prolific and personally out of control -- turns his sites on the "small claims" mechanism. But most troll lawyers aren't like Liebowitz -- they don't regularly behave in a way that readily identifies them as a troll. 6/

The bottom line is I don't think the Copyright Office is going to be willing or able to do much to prevent the CASE Act from becoming the Copyright Troll Lawyers Full Employment Act. 7/

I do think there is a risk that at the end of the day the courts throw the entire thing out. Congress has taken an adjudicatory function and plopped it in an agency of the legislative branch (the Copyright Office). That creates a real separation of powers problem. 8/

Defenders will say that the mechanism is "voluntary" and that saves it from invalidation. I'm not so sure. Is the "opt out" enough to vitiate the separation of powers concern? Suffice to say that the Supreme Court's SOP jurisprudence is hazy enough that it's a matter of doubt. 9/

Pam Samuelson and Kathryn Hashimoto detail the CASE Act's constitutional problems, as well as its design flaws, in this short and readable piece. 10/ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3060796

should have @'ed @PamelaSamuelson here (can't find a twitter handle for Kathryn Hashimoto). Sorry.