Last year, bipartisan members of the House of Representatives overwhelmingly passed the “Copyright Alternative in Small-Claims Enforcement Act of 2019” (the “CASE Act”) without debating the repercussions. Its fate will be decided in the Senate sometime this year. The bill would establish an alternative dispute resolution program for copyright “small claims” in a supposed effort to protect middle-class creators from copyright infringement and streamline the enforcement process.
In particular, the CASE Act aims to address the unfortunate issue that faces many independent artists, including adult content producers, in funding expensive federal copyright infringement lawsuits that would likely result in only a small amount of recoverable damages. While these goals are admirable, the legislation is deeply flawed and subject to abuse.
The bill directs the Copyright Office to create a Copyright Claims Board where creators can present claims before three experienced attorneys. These Copyright Claims Officers will review the cases, make decisions about the merits and determine how much is owed to the claimant.
The CASE Act regrettably limits the parties’ ability to challenge decisions made by the Board to instances of fraud, corruption and misconduct. It also does not require the same legal or evidentiary standards imposed on copyright claims in federal courts. For example, the bill does not include a requirement that plaintiffs first obtain a valid copyright registration that verifies the owner and creation date of the work central to the claim.
Most questionably, appearance before the Copyright Claims Board is “voluntary,” in the sense that defendants can opt-out in favor of a full jury trial. The bill provides no detail on how this opt-out right is to be exercised within the 60-day deadline but instead directs the Copyright Office to provide notices and set regulations on the opt-out procedures. There is no indication whether this notice will come by email, certified letter or postcard.