The dirty little secret of copyright law has always been that enforcing your rights means being willing to plunge into the world of litigation — and all of the potential expense and aggravation that journey may entail. There are of course ways to minimize the burden of litigation. For example, timely copyright registrations may allow you to recover your attorneys’ fees, good demand letters help to resolve a dispute before litigation is filed, and a well-designed legal strategy minimizes costs and stress if a lawsuit becomes necessary. Nevertheless, many creators who are legitimately losing money or creative control over their work to infringers still feel compelled to shrug it off because the costs of litigation just aren’t worth it, economically or psychologically.
A new law may change this calculation. The CASE Act (or Copyright Alternative in Small-Claims Enforcement Act of 2019) would create a kind of small claims court specifically for certain types of copyright infringement actions - a remedy for the “creative middle class,” according to the bill’s sponsor, Representative Hakeem Jeffries (D-NY). The bill was overwhelmingly passed by the House in October, and is currently awaiting a vote before the Senate, where it has already received the approval of the Senate Judiciary Committee.
The Pros and Cons of CASE
In theory, the streamlined nature of the new proceedings would allow copyright disputes to be resolved both faster and cheaper than a traditional Federal lawsuit. Instead of a court, cases would be filed with a special Copyright Claims Board (or “CCB”) created within the Copyright Office; and instead of a judge, cases would be decided by a group of three copyright experts appointed by the Library of Congress. Discovery (which can drag on for months and costs tens or even hundreds of thousands of dollars in a traditional case) would be limited, and the lawyers and parties can participate in hearings remotely rather than travel to court in person for a trial.
In keeping with the “small claims” nature of the process, the remedies available to the copyright owner are narrow. Statutory damages would be capped at $15,000 per work, and $30,000 total (by contrast, statutory damages in a traditional case can reach $150,000 per work with no upper limit on total damages). Attorneys’ fees would also only be recoverable in extraordinary cases, which further cuts in to the potential recovery. And the Board cannot issue injunctions (orders to the defendant to permanently stop using the work), unless the defendant voluntarily agrees to stop as part of a settlement. These limits will in most cases provide an economic incentive for both sides to be efficient and minimize legal fees — after all, there’s little reason to spend tens of thousands of dollars on attorneys’ fees when there is, at most, $30,000 at stake.
Similar to arbitrations, the ability to appeal the CCB’s decision will also be limited to extreme cases, such as fraud or corruption, or issues that were clearly mistakes (presumably, things like typos or accounting errors in the written decision).
Perhaps most importantly, participation in the new process is voluntary - copyright owners can still file a traditional lawsuit if they prefer, and defendants can opt out at the beginning of the case if they would rather take their chances in front of a judge or jury.
Although the CASE Act enjoys rare bipartisan support in Congress and the backing of a host of copyright and artist support groups, several criticisms have been leveled at the CASE Act by groups including the Electronic Frontier Foundation and the ACLU. Most notable is the accusation that the Act will lead to a flood of lawsuits by copyright trolls or owners going after “innocent” infringers who are using copyrighted material in purportedly innocuous ways, such as social media posts or internet commentary. On the other hand, one of the biggest clubs a copyright troll can wield is the threat of large statutory damages and recovery of attorneys’ fees, both of which are eliminated under the CASE Act. In addition, because defendants can opt out of the CCB and force copyright holders into Federal court, a claimant can’t take it for granted that a lawsuit will be either cheap or easy.
Who It (May) Help
The advantages and disadvantages of the new procedure make it most useful for “the creative middle class” that Rep. Jeffries described — independent artists and small creators who have a legitimate copyright grievance that just isn’t worth the expense of a full federal lawsuit. In cases involving one or two infringements and just enough damages to be worth the time and expense of the expedited procedure, the CASE Act may provide a welcome alternative. However, the CASE Act isn’t going to be the answer for everyone or every situation.
The lack of injunctive relief means that any infringement which is likely to continue — such as disputes between competitors, or involving serial infringers — will still need to be resolved in Federal court, unless you like returning to the Board every few months. The cap on damages and lack of fees recovery means that disputes involving multiple works or significant economic damages are still probably better off handled through a traditional case. The possibility of a monetary award still matters little if the defendant is judgment proof. And, of course, the right of defendants to opt out means that you may end up in federal court even if you try to file with the CCB.
A New Option Means Opportunity
Even with the potential disadvantages, if the CASE Act becomes law it will, if nothing else, add a new tool in the toolbox for independent artists and creators who want to enforce their rights, particularly if the value of the infringement doesn’t make it economically viable to go through with a traditional lawsuit. And more options means more opportunities to find a creative legal solution and strategy for protecting your work.