Kupferschmid had been optimistic that the bill would pass before the end of the year, giving independent creators a practical way to enforce their rights without the expense of federal copyright litigation. While the act passed the Senate Judiciary Committee in July, Kupferschmid says Wyden placed a hold on the bill in early November that has prevented it from going to the Senate floor for a full vote. Early on the negotiations were taking place in good faith, says Kupferschmid, but recently there has been "a lot of backsliding."
"You can't negotiate in that type of environment," he says. "We were fine trying to address his concerns, but when he keeps on moving the goalpost. And at that point, you go, this is not a negotiation this is hostage situation. We're not going to be held hostage."
Wyden also presented a major hurdle for last year's passage of the Music Modernization Act, introducing a competing bill shortly after the MMA passed the House and had been introduced into the Senate. His bill directly conflicted with the CLASSICS portion of the MMA that deals with pre-1972 recordings. In turn, Wyden became the subject of a pressure campaign from songwriters and artist advocates.
Kupferschmid expressed frustration with Wyden, noting his opposition to the MMA and alignment with groups that are philosophically opposed to copyright protection, such as the Electronic Frontier Foundation and Public Knowledge.
Kupferschmid says Oregon creators are equally peeved. Michael Shay, a photographer in Oregon, who is vice-chair of the National Board of Directors of the American Society of Media Photographers, said he was dismayed to learn that his senator was holding up the bill. He says this small claims court would allow him to take action over anyone who takes photographs off his website that he describes as "his virtual porch." Shay plans on confronting Wyden at his planned town hall in Yamhill, Oregon, on Sunday to get answers.
"He made promises at the first [town hall], which he apparently hasn't kept," said Shay. "We're very concerned about why Senator Wyden, who was such a liberal senator and has been so great for Oregon in so many other ways, is the only guy standing in the way of passing the Case Act. He's the only senator who has a hold on a bill that passed 400 to 11 in the House of Representatives. And that's crazy, right?"
Sen. Wyden has not responded to Billboard's request for comment.