In 2019, I posted about the CASE (‘Copyright Alternative in Small-Claims Enforcement’) Act, which was then a standalone bill in the Congressional hopper. That session of Congress has now expired, but in its final days it did pass (and the President did sign) an ‘omnibus’ bill which included the provisions of the CASE Act. It is now therefore part of US copyright law, Title 17. And in about a year, the new procedures will be accessible by qualified rightsholders who believe others have made infringing use of their materials. In that context, I think it is worth taking, as Seth Meyers says, a closer look.
What is the practical effect of these revisions to US copyright law? It may be best to think of it as a new form of Alternative Dispute Resolution (ADR), specifically for relatively small copyright issues, the eventual damages for which must fall below a certain cap ($15,000 per claim and $30,000 total) on any potential award to the prevailing party. As I wrote earlier, “it’s probably not a surprise for readers to learn that copyright litigation can be very expensive – one estimate from the American Intellectual Property Law Association suggests that the average cost of a case in recent years, including appeals, runs over $278,000.” Individual creators, especially photographers, and their associations lobbied Congress for more than a decade in pursuit of this relief.
Under the new arrangement, a creator who believes their work has been infringed will be able (from early 2022, after the Copyright Office gets the bureaucratic side of things set up, and staffed) to bring a complaint to a new ‘Copyright Claims Board‘ by filing out a web form and sending in a fee. Significantly, use of the new procedure is voluntary. In other words, both sides in the dispute have a simple opt-out option; however, their resort to a federal court — bringing a suit on the same issue — is cut off after using the CASE system’s arbitration process, on the principal of “you get only one bite at the apple.”
To be fair, critics of the new law have consistently made their opposition known and in generally reasonable terms. They fully expect many frivolous (or perhaps even groundless) cases to come before the Claims Board, potentially overwhelming it with noise. Or, for the BigCorps of the world to automatically opt out of the CASE process on complaints from LittleCorps (or individual creators), taking the “if you want to sue me, you have to sue me in a real court” approach rather than aim for a quick resolution of the dispute. I grant those are possibilities. In the age of social media, perhaps even BigCorps (or, simply, UnScrupleCorps) don’t want to be tagged as #copyrightscofflaws for all to see. To find out, we’ll have to watch out for what actually comes down the pike next year.
For my own part, I am moderately hopeful about all this; I think the new Tribunal process will, more likely than not, help some folks – e.g., smaller scale creators such as independent authors and photographers — whose rights are not being adequately respected under the present rules. Basically, that the CASE Act provisions, when implemented, will work as the stakeholder groups who promoted CASE hope that it will, and as Congress intended. While the damage caps may seem like modest sums, if it is someone’s way of making a living that’s at stake, it is a big deal to them.
Additional (detailed) reading:
- “CASE Act Signed Into Law: What This Means” by Terrica Carrington and Keith Kupferschmid (Copyright Alliance)
- “COVID-19 Relief Bill Creates New Small Claims Copyright Board, Stronger Criminal Penalties for Illicit Streaming” Gibson Dunn (law firm), December 28, 2020
- “Congress Enacts Controversial Copyright Alternative in Small-Claims Enforcement (CASE) Act” Morgan Lewis (law firm) January 4, 2021