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October 21, 2019

Enforcing Copyright Claims

Can a simple, more affordable option be on the horizon?

Imagine you are a commercial photographer who sells a picture to a client to use at an event, but your client's competitor at the same event is using it too, without your permission and without paying for it. You clearly own the picture, and you have the right to decide who can use it. But how do you enforce that? Today the answer is to sue your client's competitor in federal court for copyright infringement. That is an expensive and time-consuming process, and there is no guarantee of success. But hope may be on the horizon for copyright owners if Congress passes legislation to simplify the legal process and make it more affordable.

In this era of political gridlock, one area of bi-partisan agreement is on the need for small creators to have an avenue to pursue their low value claims of copyright infringement. Both chambers of Congress will soon be voting on the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act”) which would create an alternative forum inside the U.S. Copyright Office to pursue these low value claims. 

The copyright community has noted the need for such a tribunal, as the high cost of legal counsel, time-consuming nature of discovery, and significant likelihood of loss when proceeding pro se have all made federal copyright infringement litigation effectively unavailable for parties with limited resources. As a result, copyright holders who cannot afford to bring claims essentially must tolerate infringement and are thus deprived of the protections that copyright is meant to afford.

Moreover, copyright defendants are often burdened with significant legal costs and long-lasting suits, even where their use is fair or otherwise lawful. Overall, these risks hinder copyright law from fulfilling its primary function of incentivizing the creation of new, expressive works. If enacted, the CASE Act would establish a Copyright Claims Board (the “Board”) within the United States Copyright Office (the “Office”) to resolve copyright claims up to $15,000 for a single work and up to $30,000 in one proceeding in which two or more claims are asserted.

At the August Annual Meeting, the ABA adopted policy supporting the creation of a program similar to that now proposed by the CASE Act. An alternative small claims forum within the Copyright Office limited to claims seeking up to $30,000 in damages, staffed by lawyers well-versed in copyright and alternative dispute resolution, and open to consenting parties proceeding with or without legal representation is well worth pursuing because it will result in greater access to justice.  

The CASE Act would bring positive change to the copyright system by providing copyright holders with a realistic means to protect their works. Claimants could recover for a meritorious infringement claim when they could not realistically bring the action in federal court. The Act would also benefit defendants who may choose to participate in the Copyright Small Claims Program by minimizing the cost and time needed to resolve disputes and ensuring that they are protected from liability for any amount over the cap on recovery in the small claims proceeding.

Some groups are concerned that these small claims could chill free speech on the internet and decisions would not be appealable to the federal courts. While some level of judicial review of small claims decisions may be appropriate, subjecting these decisions to extensive, overly-broad judicial review in federal court undermines the very purpose of the bill, destroys the effectiveness of this small claims procedure, and potentially enables respondents to re-litigate their cases in very same federal courts that the claimants could not afford in the first place.

These groups also argue that defendants should not have to “opt-out” of the proceedings, but rather should be allowed to “opt-in.” This “opt-in” approach, however, has no teeth. In its 2013 report that recommended the establishment of a small claims tribunal, the Copyright Office highlighted some significant shortcomings of the “opt-in” approach—shortcomings that have plagued small creators when attempting to protect their works. “The ‘opt-out’ model,” the report states, “offers the significant advantage that parties could pursue claims against uncooperative respondents” who often ignore their cease and desist notifications. An “opt-out’ system would help prevent a small claims process for copyright claims from being similarly ignored. 

Additionally, using an “opt-in” approach for small claims proceedings would create a framework nearly identical to currently available alternative dispute resolution (ADR) solutions that do not work for small creators any better than expensive and complex federal court processes. If a respondent is required to opt in to a small-claims proceeding, the copyright holder would be agreeing to a mediator or an arbitrator in lieu of going to court. In short, an “opt-in” approach would be a waste of Congress’ time because the approach already exists today through ADR.

The Senate Judiciary Committee considered the CASE Act in July and passed it via voice vote; the House Judiciary Committee similarly followed suit last month. The legislation is now ready to be brought to the floor of both chambers for a full vote. If all goes as planned, the House of Representatives could vote on this bill as soon as October 21st, and the Senate shortly thereafter.

To encourage your Senators and Representatives in Congress to support this important legislation, please click here.