This month the Copyright Alternative in Small-Claims Enforcement Act of 2019 (“CASE Act”) was introduced in the Senate (S. 1273) by a number of Senators including Dick Durbin of Illinois and in the House (H.R. 2426) by Representatives Hakeem Jeffries and Doug Collins. The CASE Act seeks to provide individual creators and small businesses, who create the vast majority of creative works but are the least able to afford costly intellectual property litigation, with an affordable forum to adjudicate small claims against copyright infringers. The CASE Act would create the equivalent of a small claims court within the United States Copyright Office. The bill (referred to informally as “the small claims bill”) closely track recommendations made by the Copyright Office in its comprehensive 2013 study on the subject. The CASE Act has received sizeable bipartisan support in both houses.
Important elements of the CASE Act include provisions that would:
- Cap damages at $30,000 per proceeding (and preclude awards of injunctive relief);
- Create a Copyright Claim Board (“CCB”) comprised of three judges with copyright law and alternative dispute resolution experience;
- Make participation voluntary by allowing an alleged infringer to opt out of the small claims process (which would require the copyright owner to file an infringement claim in federal court);
- Allow the entire proceeding to be conducted on paper, obviating in-person appearances;
- Require parties to pay their own attorney fees, if any;
- Discourage bad faith claims, counterclaims, and defenses by (1) permitting fee shifting awards to be entered against bad actors, and (2) barring “repeat offenders” from filing claims before the CCB for a period of time.
For many small businesses, the incentive to continue to produce creative works is curbed by the ease and frequency at which those works are copied and used without permission, an increasingly easy task in today’s digital world. Beyond just stifling the creative spirit, piracy costs these small businesses and independent creators hard-earned money as they lose out on sales and potentially have the market for their works ruined by the release of their works online for free.
“In its current form, the copyright system leaves no practical way for many creators to protect their rights as copyright holders,” says Senate bill co-sponsor Hirono. “Federal district court litigation is simply too expensive and too complex for small photographers, artists, and the like to pursue valid claims against copyright infringers. The result is a system where those who rely most on their copyrighted works for their livelihoods are forced to sit back and watch while others use those copyrighted works free of charge. The CASE Act will go a long way toward fixing this situation. By creating the Copyright Claims Board, the CASE Act establishes a venue where small creators can actually enforce their intellectual property rights and finally bear the fruit of their work.”
According to industry experts, a large majority of infringement suits involve small dollar amounts of damages, in most cases under $3,000 according to these experts, yet could cost many times more than this to litigate in court. The establishment of a copyright small claims tribunal aims to help bridge this damages-to-cost disparity and make obtaining relief accessible. The CASE Act is backed by a number of notable visual arts industry organizations including the Professional Photographers of America (PPA), the American Society of Media Photographers (ASMP), the Digital Media and Licensing Association (DMLA), American Photographic Artists (APA), the American Society for Collective Rights Licensing (ASCRL), the Graphic Artists Guild (GAG), the National Press Photographers Association (NPPA), and the North American Nature Photography Association.
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