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February 19, 2021 Articles

Not Lawyering Up?!: A Review of the CASE Act

The act seeks to change the status quo by providing artists with a real ability to protect themselves and their creations.

By April D. Davenport
The costs and complexity of even a simple infringement case can place the court system beyond the reach of small copyright holders.

The costs and complexity of even a simple infringement case can place the court system beyond the reach of small copyright holders.

Credit: yacobchuk/iStock

Deeply rooted in our history, copyright is a bedrock principle in American law that grants exclusive rights to creators for protection of their original works. The purpose of a copyright is to encourage the production of creative works that enrich our culture, by protecting the exclusive right of artists and inventors to benefit from their creations. However, many artists are not able to benefit from this basic protection, simply because they cannot afford to defend their rights when someone infringes their copyrighted work.

Currently, artists and creators have no practical or cost-effective way to enforce their rights. Because federal courts have exclusive jurisdiction over copyright litigation, the costs and complexity of even a simple infringement case can place the court system beyond the reach of smaller copyright holders, especially those in marginalized communities. The benefits of bringing such a claim can easily be outweighed by the high cost of litigation. As a result, many legitimate claims go unaddressed.  

What Is the CASE Act?

The CASE Act, an acronym for a bill called the Copyright Alternative in Small-Claims Enforcement Act of 2019, was introduced to address this critical problem within the copyright system. The CASE Act seeks to change the status quo by providing artists with a real ability to protect themselves and their creations.

By creating a much less formal and inexpensive option for artists, the CASE Act would enable copyright owners to inexpensively bring a claim for infringement disputes capped at $15,000 per claim or $30,000 for the entire case, without having to hire a lawyer or travel to the nearest federal court. Essentially, the act creates a quasi-judicial body within the Copyright Office called the Copyright Claims Board. Appointed by the Library of Congress, the Copyright Claims Board would have jurisdiction over copyright infringement litigation. Both owners of a copyright and users can bring claims before the board.

The main goal of the CASE Act is to provide an alternative for artists and creatives to have a cost-effective option to bring infringement claims. However, the act can also benefit copyright users. In federal court, defendants can be taxed with high legal fees defending their use, even if their use might be legally permissible. But with the CASE Act, users have the ability to assert fair use and other claims in their defense. Perhaps one of the most significant features of the CASE Act is that participation would be entirely optional. There is no requirement for copyright owners to bring their case before the Copyright Claims Board, and there is no requirement for copyright users to defend themselves before the board. A creator can still pursue his or her claim in federal court, mediation, arbitration, or any other action. By the same token, if an organization (or individual) accused of infringement does not want to defend itself in a Copyright Claims Board proceeding, it can simply opt out. When this happens, the Copyright Claims Board proceeding is terminated.

Although it is simple to opt out of a proceeding, there are incentives for parties, both copyright owners and users, to participate. Participating in the small claims proceeding is significantly less costly than litigation in federal court, primarily because there is no need to hire an attorney. In addition, capping the damages of these proceedings at $15,000 per infringement, or $30,000 total, reduces the infringer’s potential liability, compared with what the infringer’s liability could be in federal court.

Potential Problems with the Act

Although there are many advantages, the CASE Act does have its challenges. Opponents believe that the act will create an easier procedure for copyright trolls, individuals or companies that enforce the copyrights they own solely for purposes of making money through litigation, with no real intent to ever produce, license, or sell their work. Opponents argue that the CASE Act creates a quick and inexpensive way to collect on a large number of claims without the judicial review they might receive in a “real” court. In essence, opponents feel that the CASE Act will lead to abuse in litigation that could bankrupt individuals or small businesses for something as small as posting a photo on social media.

However, proponents allege that trolling works only when it is cheaper to pay up than it is to fight the litigation. What’s more, defendants can always “opt out” and force the copyright troll to bring its claim in federal court. Proponents further believe that the CASE Act will prevent trolling and other bad-faith claims, because anyone found abusing the system can face significant consequences. The CASE Act gives the Copyright Claims Board the authority to dismiss frivolous claims and award attorney fees up to $5,000, or more in extraordinary circumstances. The Copyright Claims Board can also prohibit the bad-faith actor from filing a case for one year, in addition to dismissing all of its pending cases.

Critics are also opposed to making defendants “opt out” of the proceedings if they do not want to participate, rather than making defendants “opt in” if they do. They argue that the opt-out process could potentially violate constitutional rights of due process. By failing to opt out, the defendant forfeits his or her right to a jury trial and is bound by the decision of the Copyright Claims Board. In addition, the opt-out system does not take into consideration the abilities of “sophisticated” respondents. Realizing that many artists may not have the resources to follow up with a formal lawsuit in federal court, these respondents will inevitably know to opt out of the process. Opponents of the act also believe that the CASE Act will pose a threat to free speech. However, proponents contend that a user who believes that his or her use qualifies as fair use can assert his or her rights even more easily in this venue.

Where Is It Now?

An essentially bipartisan bill, the CASE Act was introduced in the U.S. House of Representatives on May 1, 2019, and passed on October 22, 2019. The CASE Act failed to gain traction in the Senate until late 2020. Then on December 27, 2020, the Consolidated Appropriations Act, 2021, was signed into law. This omnibus legislation incorporated new laws affecting intellectual property. As a result, the CASE Act, the Trademark Modernization Act, and the Felony Streaming Act were all passed as part of the Consolidated Appropriations Act, 2021.

At its core, the CASE Act is about access to justice. The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of creators to benefit from their works. Traditionally, protecting this right in federal court was an unrealistic avenue for many creators and artists. The CASE Act simply offers a choice that is not presently available in copyright litigation. This new legislation seeks to bring positive change to the current copyright system by providing copyright holders, regardless of socioeconomic status, a realistic way to protect their works.

April D. Davenport is a judicial law clerk with Orleans Parish Civil District Court in New Orleans, Louisiana.

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