Senate Committee Advances Creation of Copyright Small Claims Board

The Senate Judiciary Committee Recently Advanced Legislation Would Create a Copyright Small Claims Court within the U.S. Copyright Office

The Senate Judiciary Committee recently advanced the Copyright Alternative in Small-Claims Enforcement (CASE) Act. The legislation would create a copyright small claims court within the U.S. Copyright Office.

As highlighted by supporters of the bill, filing a copyright infringement lawsuit in a federal court can be costly and time-consuming, particularly for small businesses and individual copyright holders. The average cost of copyright infringement litigation, from pre-trial proceedings through an appeals process, totaled $278,000 in 2017, according to a report by the American Intellectual Property Law Association (AIPLA). The CASE Act would create an alternative to traditional copyright infringement lawsuits.

Key Provisions of CASE Act

The CASE Act would establish a Copyright Claims Board comprised of three officers with significant experience resolving copyright claims. The members of the tribunal would be recommended by the Register of Copyrights and appointed by the Librarian of Congress. Below are several other key provisions of the proposal:

• Voluntary participation: Proceedings could be initiated by a copyright holder claiming infringement or by a user seeking to obtain a legal declaration of non-infringement. The small claims court would also be authorized to hear claims for misrepresentation in connection with a notification of claimed infringement or a counter-notification seeking to replace removed or disabled material under Section 512(f) of the Digital Millennium Copyright Act.
• Limited Damages: Awards of statutory damages would be limited to $15,000 for each work infringed, provided the works were registered with the U.S. Copyright Office prior to infringement or within three months of publication. For work that was not timely registered, the damages would be limited to $7,500 per work. The monetary damages in any one proceeding would be capped at $30,000.
• Attorneys’ Fees: Except in the case of bad faith conduct, the parties to proceedings before the Copyright Claims Board would bear their own attorneys’ fees and costs.
• Electronic Proceedings: Claims before the board would not require in-person appearances by parties or others. Instead, they would take place by means of written submissions and hearings and conferences accomplished via Internet-based applications and other telecommunications facilities.

Supporters of the CASE Act maintain that copyright infringement claims would proceed more quickly and be far less costly to litigate. Sen. John Kennedy (R-LA) introduced the bipartisan bill in the Senate. Co-sponsors of the CASE Act include Sens. Dick Durbin (D-IL), Thom Tillis (R-NC), Mazie K. Hirono (D-HI), Marsha Blackburn (R-TN), Jeanne Shaheen (D-NH), Tom Udall (D-NM), Kevin Cramer (R-ND), Chris Coons (D-DE) and Patrick Leahy (D-VT).

The legislation also has support from groups like the Recording Academy and the Professional Photographers of America (PPA). “We thank the members of the Senate Judiciary Committee, and especially the bill’s original co-sponsors […] for passing the CASE Act out of Committee today and for making it a legislative priority, one that will benefit hundreds of thousands of U.S. photographers, illustrators, graphic artists, songwriters, and authors, as well as a new generation of creators including bloggers and YouTubers,” wrote the Copyright Alliance. “We look forward to working with the Senate and other stakeholders as the CASE Act moves to the Senate floor and moves forward in the House of Representatives.”

Meanwhile, critics of the CASE Act contend that the small claims court will encourage more lawsuits. “In short, the bill would supercharge a ‘copyright troll’ industry dedicated to filing as many ‘small claims’ on as many Internet users as possible in order to make money through the bill’s statutory damages provisions. Every single person who uses the Internet and regularly interacts with copyrighted works (that’s everyone) should contact their Senators to oppose this bill,” argued the Electronic Frontier Foundation in opposition.

What’s Next?

The CASE Act will now proceed to a full vote in the Senate. It also still needs to make its way through the House of Representatives before reaching President Donald Trump. The intellectual property attorneys of the Scarinci Hollenbeck Intellectual Property Law Group will continue to track this bill and post updates.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, David Einhorn, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.