When copyrighted works are infringed on user-upload websites, many copyright owners are deterred from seeking civil justice by potential attorneys' fees and court costs. Legislation pending in both chambers of Congress, if passed, would provide copyright owners of modest means a less expensive venue to bring infringement claims. The House of Representatives and the Senate should promptly vote to approve the Copyright Alternative in Small-Claims Enforcement Act or “CASE Act” (H.R. 2426 and S. 1273).
Infringements of copyrighted works deprive the owners of their exclusive rights to the proceeds of their property and labors, jeopardizing their livelihoods. Yet existing law make it burdensome for songwriters, recording artists, filmmakers, and other creative artists with limited resources to protect their copyrights and seek damages for infringement of their works. For starters, copyright owners face time-consuming burdens of patrolling user-upload sites for unauthorized uses of their works and issuing and re-issuing numerous notices to online platform services. Additional obstacles are posed by provisions in the Digital Millennium Copyright Act of 1998 (DMCA) regarding counter-notices and disputed takedown requests.
Under the DMCA, if a copyright owner submits a takedown notice to an online platform provider, the provider must make the takedown notice available to the user who posted the alleged infringing content. A user who objects to the takedown can file a counter-notice, requiring the online provider to repost the allegedly infringing content. And if a counter-notice is filed, a copyright holder still seeking to vindicate his or her rights must hire a lawyer and file a lawsuit in federal court within ten days.
There is ample hardship in retaining an attorney to bring a copyright infringement lawsuit within ten days. Moreover, the federal court litigation is too costly for many copyright owners. As of 2019, filing and administrative fees to bring a civil case total $400. Attorneys’ fees and other litigation costs run much higher. The American Intellectual Property Law Association’s 2015 “Report of the Economic Survey” found that the median litigation costs of a copyright infringement lawsuit valued at less than $1 million was $150,000 at the time discovery was concluded.
Not surprisingly, the U.S. Copyright Office has recognized that “federal court is effectively inaccessible to copyright owners seeking redress for claims of relatively low economic value, especially individual creators who are of limited resources.” In its September 2013 “Copyright Small Claims” report, the Office concluded that “the most promising option to address small copyright claims would be a streamlined adjudication process in which parties would participate by consent.” The Office's legislative proposal for a small copyright claims court provided the basis for the CASE Act.
H.R. 2426 and S. 1273 would establish a Copyright Claims Board as a voluntary, alternative forum to federal courts for alleged copyright infringements where total recovery is for $30,000 or less, exclusive of attorneys' fees and costs. The Board would consist of three appointed Copyright Claims Officers serving six-year terms. Under the CASE Act, copyright owners could initiate small claims proceedings before the Board by providing notice to respondents, who would have 30-days to consent or opt-out. Failure to timely respond could result in a default against the respondent. Importantly, the Copyright Claims Board would provide a venue for copyright owners to seek relief for DMCA-related claims for online infringement on user-upload websites.
The CASE Act provides that both parties before the proposed Copyright Claims Board would make written submissions. Hearings would be conducted remotely. Similar to a typical small claims court, the Copyright Claims Board would have simplified procedures with limited discovery. The Board could dismiss without prejudice any claim that it believes to be unsuitable for the small claims process. Decisions by the Board would be binding only on the parties before it. And Board decisions would be subject to limited review by the Register of Copyrights for “abuse of discretion.” Such decisions could later be filed in federal court for enforcement, but they also could be challenged in federal district court for fraud, misconduct, or other improprieties.
Both H.R. 2426 and S. 1273 have been reported out of their respective committees, with overwhelming bipartisan support. Passing the CASE Act would be an important achievement in copyright reform for the 116th Congress. The legislation wouldprovide a less expensive and simpler process for addressing many copyright infringement claims, including some DMCA-related claims. The House and Senate should soon vote on the CASE Act and provide copyright owners of modest means greater access to justice.
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