On Tuesday, October 22nd, the House of Representatives voted overwhelmingly in favor of a measure that would effectively create a small claims court within the Copyright Office.[i]
A bit of background: the Copyright Alternative in Small-Claims Enforcement Act, (“CASE Act”)—introduced in May of this year, and previously in 2017—proposes to create a Board within the Copyright Office consisting of three full-time Copyright Claims Officers. Seeking a hearing in front of the Board is meant to serve as an alternative means by which copyright holders may pursue infringement claims.[ii] The bill also proposes an opt-out system for adjudication, under which the parties who have allegedly infringed upon another party’s registered copyright will be notified of the allegation and required either participate in the small claims process or respond with notice of their unwillingness to do so within 60 days.[iii] Damages would be capped both for each work infringed upon, and for the total award available per claim. The Act secondarily makes some other adjustments to the existing body of copyright law.
This bipartisan legislation has seen broad support from various artists’ guilds and non-profit organizations, including The Authors Guild[iv], the International Authors Forum[v], The Copyright Alliance[vi], and the Songwriters Guild of America.[vii] These groups and many others have long called for similar reform, and would argue that the CASE Act is long overdue. Under the current Copyright regime, all claims of infringement, regardless of their magnitude, must go through the federal courts—a process that is often cost preclusive for independent creators and small businesses. The Graphic Artists Guild, for example, claims that graphic artists suffer a huge amount of repeated infringement—particularly online—in amounts which may be substantial to the artists, but are far too small to pursue via federal litigation.[viii] Streamlining the process by which individuals may seek remedies for the rights already granted to them by copyright law would serve to circumvent this economic barrier. In fact, legislation to this effect is very widely regarded as a positive and necessary course of action, although there are some who have voiced concern regarding certain elements of the language and structure of the CASE Act as currently written.
The CASE Act has received opposition, perhaps most notably, from the Electronic Frontier Foundation (EFF)[ix]and the American Civil Liberties Union (ACLU), who argue that the average individual Internet user maybe exposed to risk of incurring hefty costs for merely sharing an article or photo. They indicate that the cost of legislation like the CASE Act is a chilling effect on online speech. The ACLU’s letter to Congress urging them to vote ‘no’ on the Act compares the potential impact of the CASE Act to the effect they suggest that the Digital Millennium Copyright Act (“DMCA”) has had of allowing for meritless claims that require removal of online content upon notice of the alleged infringement. The ACLU also expresses a fear of systemic abuse of the CASE Act’s proposed system in the form of frivolous claims that are not meaningfully subject to judicial review.[x] Among the proponents of the bill, however, the ACLU’s position is characterized as a fairly typical response from similar organizations to any law that holds itself out to bolster intellectual property protections.
[i] H.R. 2426 – “Copyright Alternative in Small-Claims Enforcement Act of 2019: Roll Vote No. 578” (Oct. 24, 2019). Available from: Congress.gov; Accessed: 10/24/19. https://www.congress.gov/bill/116th-congress/house-bill/2426/all-actions?overview=closed&q=%7B%22roll-call-vote%22%3A%22all%22%7D
[ii] H.R. 2426, §1502
[iii] H.R. 2426 §1504
[iv] Please Support Small Copyright Claims (CASE Act), The Authors Guild (Oct. 24, 2019). https://www.authorsguild.org/industry-advocacy/please-support-small-copyright-claims-case-act/
[v] US Authors Make CASE For Small-Claims Court, International Authors Forum (Oct. 24, 2019). https://www.internationalauthors.org/news/copyright-law/us-authors-make-case-for-small-claims-court/
[vi] Support the CASE Act, Copyright Alliance (Oct. 24, 2019) https://copyrightalliance.org/news-events/copyright-news-newsletters/copyright-small-claims/
[vii] Finally, Songwriters Can Sue In Small-Claims Court, Songwriters Guild of America (Oct. 24, 2019). https://www.songwritersguild.com/site/index.php/how-small-claims-act-will-help-songwriters
[viii] The Guild Welcomes the Introduction of the CASE Act into the House and Senate, Graphic Artists Guild (Oct. 24, 2019). https://graphicartistsguild.org/the-guild-welcomes-the-introduction-of-the-case-act-into-the-house-and-senate/
[ix] Katharine Trendacosta, The House Votes in Favor of Disastrous Copyright Bill, EFF, Oct. 22, 2019.
[x] Kate Ruane, RE: Vote “NO” on H.R. 2426, the Copyright Alternative in Small-Claims Enforcement (CASE) Act, Oct. 21, 2019