Congress makes a case for a small-claims tribunal on copyright infringement

By Emmanuel Legrand

The Copyright Alternative in Small-Claims Enforcement Act of 2019 or CASE Act, that will establish a new Copyright Claim Board within the United States Copyright Office, has been introduced simultaneously in both the House (HR 2426) and Senate (S. 1273) on May 1 by a group of bi-partisan Representatives and Senators.

  The House bill is sponsored by by Hakeem Jeffries (D-NY) and Doug Collins (R-GA) with Representatives Hank Johnson (D-GA), Martha Roby (R-AL), Judy Chu (D-CA), Ben Cline (R-VA), Ted Lieu (D-CA), and Brian Fitzpatrick (R-PA) as co-sponsors. The Senate bill (S. 1273) had the backing of John Kennedy (R-LA), Thom Tillis (R-NC), Dick Durbin (D-IL), and Mazie Hirono (D-HI). 

 

  The CASE Act was previously introduced in 2017 as the Copyright Alternative in Small-Claims Enforcement Act of 2017, but it did not get passed. The bill will introduce for the first time a small-claim tribunal that will allow rights holders to find resolution to low value copyright infringement cases without having to go through the expensive and time-consuming Federal Court process.

 

A legislative priority

 

  Keith Kupferschmid, CEO of Washington, DC-based creators advocacy group Copyright Alliance, said the CASE Act has been and is "a legislative priority" for hundreds of thousands of photographers, illustrators, graphic artists, songwriters, and authors, as well as "a new generation of creators," including bloggers and YouTubers across the country. "Today, they have rights but no remedies," he said. "The CASE Act will go a long way to restoring their faith in the copyright system."

 

  "There is established in the Copyright Office the Copyright Claims Board, which shall serve as an alternative forum in which parties may voluntarily seek to resolve certain copyright claims regarding any category of copyrighted work, as provided in this chapter," reads the bill. The Copyright Claims Board will consist of three  full-time Copyright Claims Officers recommended by the Register of Copyrights and appointed by the Librarian of Congress after consultation with the Register of Copyrights. The Copyright Claims Officers will be attorneys with at least seven years of legal experience and will serve for a renewable term of six years.

 

  The bill specifies that statutory damages may not exceed $15,000 for each work infringed. The CASE Act contains an opt-out procedure, which allows a respondent to opt out of the proceeding  during a 60-day period. In such case, the proceeding be dismissed without prejudice.

 

  "For more than a decade, individual creators and small businesses have been advocating for a change in the copyright law to address an inequity that has routinely provided them with rights but no remedies," said Keith Kupferschmid, CEO of Washington, DC-based creators advocacy group Copyright Alliance. "The CASE Act would make very targeted, very modest changes to the copyright law to address this inequity and give America’s creators the tools to protect the fruits of their creativity."

 

Provide a solution for photographers

 

  The legislation was mainly supported industry organisations such as the American Photographic Artists, American Society of Media Photographers, National Press Photographers Association, North American Nature Photography Association, and Professional Photographers of America. “Copyright infringement is a pernicious problem for our members,” explained NPPA President Michael P. King. “Visual journalism is incredibly valuable work that is regularly stolen and circulated on the internet in a matter of minutes. Yet visual journalists currently face a long, expensive process to be compensated for the theft of their work.” 

 

  King added, “The manner in which infringement persists without a workable remedy is economically devastating for photographers, their clients and their employers. It is our hope that the balanced nature of the CASE Act provides a real solution for photographers and other authors.”

 

  The bill received a cold welcome by internet advocacy groups. Washington, DC-based Public Knowledge said it opposed the bill as written "due to grave concerns with its contents." Meredith Rose, Policy Counsel at PK, said the CASE Act does not offer "a meaningful solution" for creators but instead is "flatly untenable, and unlikely to solve the problems it claims to address." 

 

  She elaborated: “The Act further entrenches an already-toxic culture of secrecy within major entertainment industries; undermines recent Supreme Court precedent on the importance of copyright registration; and creates a body that can grant un-appealable, enormous judgments that stretch the definitions of ‘small claims,’ while empowering the Copyright Office to further increase those judgment amounts in the future."

 

  Another pro-open internet group, the Electronic Frontier Foundation, called for Congress "to reject the CASE Act." EFF Senior Staff Attorney Mitch Stoltz wrote in a blogpost a year ago that the CASE Act "would give copyright trolls a faster, cheaper way of coercing Internet users to fork over cash 'settlements', bypassing the safeguards against abuse that federal judges have labored to create."