A Primer on The CASE Act

The CASE Act would establish a small copyright claims tribunal. Much like a small claims court, the tribunal would hear copyright cases where the possible award is quite small: up to $15,000 for an single infringement and $30,000 for multiple infringements. The tribunal, called the Copyright Claims Board (CCB), will reside within the Copyright Office, and it will be presided over by three officials.

Creators, including graphic designers, illustrators, animators, and comic book and cartoon artists, see their work being infringed by companies and individuals who download their images, and use them in a variety of ways – without the artists permission. The artist loses any commission they would have received if the infringer instead hired them to create something new, they lose any licensing income had the infringer licensed the artwork, and their artwork loses licensing value. On top of that, the artwork is being used without the artists permission – they have no say about who is using their artwork and how.

For small copyright infringements, creators have limited options. They have a hard time finding lawyers who will take small infringement cases; in a 2011 survey, 2/3 of copyright lawyers said they wouldn’t take a copyright case where the potential award is under $30,000. The reason why is simple: the legal costs for a small copyright case could easily outstrip the potential award.  Infringers act with impunity because they know that most creators can’t afford the cost of suing them for copyright infringement in federal court. In a survey conducted by the Guild in 2012, over 60% of artists who had their work infringed said that the infringer simply ignored their attempts to contact them.

A small copyright claims tribunal would give creators an option to pursue these small cases. It’s something the Guild and other visual artists organizations have supported for many years. The Copyright Office agrees. In a report to Congress in 2013, they recommended that Congress pass legislation establishing a small copyright claims tribunal, and outlined how that tribunal should work. The tribunal proposed in The CASE Act is modeled on the Copyright Office’s recommendations.

If you want to know who introduced The CASE Act into Congress, the list of sponsors and co-sponsors is bipartisan. In the House, the bill was introduced as H.R. 2426 by Reps. Hakeem Jeffries (D-NY) and Doug Collins (R-GA), and co-sponsored by Reps. Nadler (D-NY), Johnson (D-GA), Roby (R-AL), Chu (D-CA), Cline (R-VA), Lieu (D-CA), and Fitzpatrick (R-PA). In the Senate, Senators Kennedy (R-LA), Tillis (R-NC), Durbin (D-IL), and Hirono (D-HI) introduced the bill as S. 1273. Additional co-sponsors have been signing on to support the bill.

If you want to know who supports the bill, a long list of creator advocates are behind it. That includes us as well as our coalition of visual artists (American Photographic Artists, American Society of Media Photographers, Professional Photographers of America, National Press Photographers Association, North American Nature Photographers Association, Digital Media Licensing Association, and American Society for Collective Rights Licensing), as well as writers groups such as the Authors Guild , Romance Writers of America, National Writers Union, and Science Fiction and Fantasy Writers; musician advocates such as the Nashville Songwriters Association International, National Music Publishers Association, and Songwriters Guild of America; the American Bar Association (IP Section) and American Intellectual Property Association; Society of Children’s Book Writers & Illustrators; and many others.

There is very little opposition to the Bill, and it’s coming mostly from a few groups in the tech sector. These groups are largely supported by Google, and traditionally oppose any bill that strengthens copyright protections for individual creators. For example, these groups opposed the Music Modernization Act, which modernized copyright-related issues that arose with the advent of new technologies like digital streaming. The Bill was widely supported by a broad range of stakeholders, including musicians, songwriters, music publishers, and digital media streaming services. The few groups in the tech sector that opposed the Bill were a lone voice, and the Bill passed into law by unanimous vote in both the House and the Senate.

The tribunal or CCB would hear small claims brought by both copyright holders and copyright users. Three types of copyright claims can be brought before the CCB:

The process would be 100% optional. Someone who is accused of infringement in a CBB proceeding can simply opt out, and the CCB proceeding is terminated. The person who brought the suit would still be able to take the case to federal court in a “regular” copyright infringement case.

Likewise, copyright holders and creators won’t be required to bring their small infringement cases before the CCB. They can choose between using the CCB, suing in federal court, or pursuing mediation or arbitration.

Much like a small claims court, the CCB process will be a much easier, streamlined process than suing an infringer in federal court. The creators wouldn’t need to hire a lawyer and  wouldn’t need to attend the proceeding in person. Discovery would be extremely limited as well.

The trade off is that damages for copyright infringement would be much smaller than in federal court, limited to $15,000 per claim and capped at $30,000 for multiple infringements. The CCB also wouldn’t be able to award attorney’s fees or costs unless a party brought a claim or counterclaim in bad faith. The CASE Act also has provisions to prevent people from bringing frivolous lawsuits or otherwise abuse the process. Such safeguards which discourage copyright trolls don’t exist in the federal courts.

The CCB is presided over by three officers instead of one judge, and those officers are appointed by the Library of Congress. The officers must be experienced in copyrights, and must represent the interests of both copyright holders and copyright users. In contrast, in federal court, a copyright case might be presided over by a judge with little to no experience in copyright matters.

The CASE Act built in several incentives to encourage infringers to stay in the CCB. The potential award in the copyright small claims process is limited to $15,000 for a single infringement and $30,000 if a claim involves multiple infringements. In contrast, in federal court a successful plaintiff might be up to $150,000 in statutory damages per work infringed, and damages aren’t capped for multiple infringements. That gives an infringer a powerful incentive to stay in the CCB. Additionally, since the copyright small claims process is so streamlined, defendants will save considerably on legal costs by staying in the CCB.

The opt-out provision was included to address a constitutional requirement. The U.S. Constitution guarantees the right to a trial by jury. The copyright small claims process proposed by The CASE Act doesn’t provide for a trial by jury. For that reason, the CCB process permits respondants to opt out and take their chances in a copyright infringement trial by jury in federal court, if the creator decides to go that route.

Large corporations already have the resources to use the federal court system, and they do so to great effect. A small copyright claims process that greatly limits the amount of an award doesn’t do anything for large corporations.

In fact, the process proposed by The CASE Act helps individual creators and their small businesses by giving them (finally!) a means to defend their copyrights. That is the whole point of the Bill. Hakeem Jeffries, the original sponsor of the Bill, has said that the purpose of a small copyright claims tribunal is to help “the creative middle class who deserve to benefit from the fruits of their labor.”

The Bill has a number of safeguards to prevent frivolous claims and discourage copyright trolls. First, the Copyright Office has the option to limit the number of claims that a claimant can bring to the tribunal in one year. Secondly, the CCB has the discretion to dismiss a case if they determine that it’s “unsuitable for determination” by the board. And third, the CCB can award attorney’s fees up to $5,000 if they determine that a claim was initated in bad faith, for example, “for a harassing or other improper purpose, or without reasonable basis in law or fact.” Additionally, if someone has initiated more than one bad faith claim in a 12-month period, the CCB can dismiss that case and any pending cases that claimant brought, and can bar them from using the CCB for one year.