Adam Vischio
Step into the shoes of a graphic designer. You operate a website where you sell your artwork and various items featuring your designs. Now, one day, you see a host of shirts and posters on Etsy using your catalog without permission and profiting off your labor. What is your recourse? Is it worth spending tens of thousands of dollars to bring a copyright infringement case? Probably not because you may not even find an attorney willing to take on your case.[1]
This is the dilemma the Copyright Alternative in Small-Claims Enforcement Act (CASE Act) attempts to solve. The CASE Act created the Copyright Claims Board (CCB), a three member tribunal housed within the U.S. Copyright Office (USCO), to decide small copyright disputes.[2] The CASE Act was included in an omnibus COVID relief package signed into law on December 27, 2020 and will begin operating as early as December 27 of this year (whether a COVID relief package should include an IP bill is a topic for another blog).[3] The tribunal is comprised of “three Copyright Claims Officers” granted the authority to render determinations of low value copyright disputes capped at $30,000.[4] The CCB is designed to be a “user friendly” and streamlined alternative to federal litigation.[5] Participation in the CCB is voluntary, meaning that a party can opt-out if it would rather litigate in federal court.[6]
Recently, the Copyright Office began a rulemaking process that would allow libraries and archives to preemptively opt out of any CCB proceeding.[7] This rulemaking process is likely a concession to library groups that initially opposed the CASE Act because they feared it would induce “ill-founded claims” by “copyright trolls” against libraries and archives.[8]
In addition to this rulemaking process, the CCB faces inquiries regarding its constitutionality from advocacy groups in light of the recent Supreme Court case United States v Arthrex.[9] In Arthrex, the Supreme court ruled that “Patent Trial and Appeal Board judges [PTAB] should have been presidentially nominated and Senate-confirmed—or their rulings should have been reversible by someone who is.”[10] To remedy the constitutional issue, the Supreme Court mandated that the USPTO director review PTAB decisions.[11] Despite the differences between the USCO, a legislative branch agency, and the USPTO, an executive branch agency, organizations like Public Knowledge speculate that Arthex may apply to the CCB.[12] If courts held that the CCB is unconstitutional, a potential Arthrex-style remedy could involve making the Librarian of Congress, a presidentially nominated and Senate confirmed position, “the reviewer of the claims board decisions.”[13]
Even before Arthex, opponents questioned the constitutionality of the CCB.[14] Public Knowledge called the CCB an “unaccountable court” that is empowered to make “unreviewable, unappealable default judgments.”[15] In support of the CCB’s constitutionality, the Copyright Alliance notes that the opt-out provision satisfies a “person’s right to have a case heard by an Article III court.”[16] Furthermore, the Copyright Alliance argues that the CCB does not usurp the role of Article III courts because the CCB has at most a “de minimis” effect because “typically individual creators cannot afford to bring a suit in federal court.”[17]
The CASE Act, first introduced by Rep. Hakeem Jeffries (D-NY) in 2017, is a product of “years of Congressional deliberation, Copyright Office research and expertise, stakeholder input, and advocacy from individual creators.”[18] However, the Arthex decision and renewed attention to the CCB’s constitutionality means that it will continue to be a hotly contested topic.
[1] Hypothetical inspired by Terrica Carrington and Keith Kupferschimd, Case Act Signed into Law: What This Means, Copyright Alliance (Jan. 7, 2021), https://perma.cc/28DC-6RTG
[2] Copyright Small Claims and The Copyright Claims Board, U.S Copyright Office, https://perma.cc/5AK2-3SU5 (last visited Sept. 22, 2021).
[3] Claudia Rosenbaum, Congress Passes CASE Act as Part of COVID-19 Relief Bill, Billboard (Dec. 12 2020), https://perma.cc/QPF7-DAJ6; CASE Act and the Copyright Claims Board (CCB) Implementation Regulations, U.S Copyright Office https://perma.cc/7EFT-WAYB (last visited Sept. 22, 2021)
[4] Copyright Small Claims and The Copyright Claims Board, U.S Copyright Office, https://perma.cc/5AK2-3SU5 (last visited Sept. 22, 2021).
[5] Id.
[6] Id.
[7] Small Claims Procedures for Library and Archives Opt-Outs and Class Actions, 86 Fed. Reg. 49273, (proposed Sept. 2, 2021) (to be codified at 37 C.F.R. § 223).
[8] Letter from Jonathan Band, LCA Counsel, Policy Bandwidth, to Rep. Pelosi, Speaker of the House of Representatives and Rep. McCarthy, Republican Leader of the House of Representatives (Oct. 21, 2019), https://perma.cc/LN5M-3MPD ; Tomas A. Lipinski, How Much of a Threat Are Copyright Trolls?, American Libraries (May 18, 2021), https://perma.cc/VBJ7-LQSM
[9] Samantha Handler, Supreme Court’s Patent Judge Ruling May Bedevil Copyright Board, Bloomberg Law, (Sept. 7, 2021) https://www.bloomberglaw.com/bloomberglawnews/ip-law/X9T5J308000000?bna_news_filter=ip-law#jcite; United States v. Arthrex, Inc. 141 S.Ct. 1970 (2021).
[10] Samantha Handler, Supreme Court’s Patent Judge Ruling May Bedevil Copyright Board, Bloomberg Law, (Sept. 7, 2021) https://www.bloomberglaw.com/bloomberglawnews/ip-law/X9T5J308000000?bna_news_filter=ip-law#jcite.
[11] Id.
[12] Id.
[13] Id.
[14] Letter from Meredith Rose, Policy Counsel, Public Knowledge, to Members of the House of Representatives, (Oct. 21, 2019), https://perma.cc/63CD-8QPC.
[15] Id.
[16] Terrica Carrington and Keith Kupferschimd, Case Act Signed into Law: What This Means, Copyright Alliance (Jan. 7, 2021), https://perma.cc/28DC-6RTG
[17] Id.
[18] Id.; Press Release, Rep. Hakeem Jeffries, Reps. Jeffries, Marino, Lead Bipartisan Effort to Help Musicians and Artists Protect Their Creative Work (Oct. 4, 2017), https://perma.cc/SW36-GKP5.