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Copyright Law Has a Small Claims Problem. The CASE Act Won’t Solve It

Kerry Maeve Sheehan

We’re grateful to Authors Alliance’s Copyright Analysis Assistant Kerry Maeve Sheehan for this evaluation of the 2019 CASE Act.

The Copyright Various in Small Claims Enforcement Act (CASE Act) is again in Congress, and it still has critical problems.

On Might 1st, Rep. Doug Collins (R-GA) and Rep. Hakeem Jeffries (D-NY) introduced the newest version of the Copyright Various in Small Claims Enforcement Act (CASE Act). Like its predecessor payments in 2016 and 2017, the 2019 CASE Act would establish a copyright small claims tribunal within america Copyright Workplace with the authority to hear and determine some copyright infringement claims.

The invoice has a laudable aim: decreasing limitations to copyright
enforcement for these with restricted monetary assets by offering a quicker
and cheaper avenue to cures. For many unbiased authors, creators, and
customers of copyrighted content material, copyright litigation in federal courtroom is just not
well worth the candle; the excessive value of litigation retains many unbiased authors
and creators from implementing their copyrights. A well-designed copyright small
claims course of might fix this but, sadly, the deeply flawed CASE Act
isn’t that. While failing to limit the tribunal’s scope to the kinds of claims
and claimants that it’s greatest suited to and permitting restoration of excessive damages,
the small claims course of as set out in the CASE Act would also cause harm to
many professional customers of copyrighted works, including authors, educators, and
other creators.

The CASE Act’s small
claims process isn’t restricted to the problems a small claims courtroom is
well-positioned to deal with.

The CASE Act’s small
claims tribunal isn’t restricted to these unbiased authors and creators who
want it most.

The copyright
holders who most want, and would most benefit, from a small claims process are
those unbiased authors and creators who can’t afford to press their claims
in federal courtroom. Unfortunately, as an alternative of limiting the small claims process to
those unbiased copyright holders that basically need access to this type of
forum to enforce their copyrights, the CASE Act opens the door extensively,
welcoming in giant firms, company assignees, and entities that buy up
others’ copyright claims and profit from litigation.

We’ve already seen how copyright trolls and large content material
corporations have typically abused the federal courtroom system to boost questionable
infringement accusations and threaten those accused with high statutory damages.
By not limiting enforcement by way of the small claims course of to particular person
creators, the CASE Act makes it even simpler for these entities to get fast
default judgments and disproportionately excessive damages awards. Absent enough
protections for accused infringers and affordable limits on damages, the CASE
Act would invite more abusive litigation techniques by copyright trolls and
opportunistic claimants while cluttering up the docket with instances that should
be resolved elsewhere.

The CASE Act’s small claims
tribunal’s jurisdiction is way too broad.

Some areas of copyright regulation are just too difficult, reality specific, and unsettled to be decided by a small claims process. The CASE Act tribunal’s accelerated course of and limited discovery mean that it’s really only outfitted to deal with simple, simple infringement claims in settled areas of regulation. However the CASE Act doesn’t draw the line there. As an alternative, the tribunal has expansive authority to listen to all kinds of copyright infringement claims including people who involve extremely complicated points and unsure areas of regulation. These difficult instances belong in a federal courtroom with the experience and assets to extra competently tackle all of the factual and authorized issues involved. Leaving these instances with the small claims tribunal hurts each those authors making an attempt to enforce their copyrights and those making an attempt to defend their rights to make use of copyrighted works, as the tribunal gained’t be capable of adequately resolve the issues involved.

Whereas the
CASE Act does embrace a provision allowing the tribunal to dismiss a declare or
defense if the tribunal decides it’s not suitable, without a clear limitation
on the tribunal’s jurisdiction, it’s arduous to see how it will make consistent
selections to take action.

The CASE Act would create new opportunities for abusive litigation
techniques.

The CASE Act’s “default
judgment mill” favors refined actors over unbiased authors and
creators.

The CASE Act’s opt-out provision doesn’t provide unbiased authors (whether claimants or defendants) enough safety. Underneath the CASE Act, if someone accused of infringement fails to opt-out of the small claims course of within 60 days of receiving discover of the claim, the small claims tribunal can enter a default judgment in favor of the claimant and award her damages. This judgment can then be enforced by the claimant in federal courtroom. While this opt-out procedure is meant to offer some safety for the accused, there’s a robust probability that authors, educators, and small creators without refined legal information or illustration might not absolutely perceive the implications and should ignore the notice – ending up on the hook for substantial damages awards without a meaningful alternative to attraction. This fast and straightforward solution to get hold of default judgments is more likely to create a “default judgment mill,” the place huge content corporations and copyright trolls can churn out a mass of default judgments and high damages awards towards unsophisticated people.

The CASE Act’s statutory damages framework invitations abuse.

There may be a position for a fairly statutory small framework in a small claims tribunal when damages from infringement are troublesome or unimaginable to prove. Nevertheless, whereas substantially decrease than the statutory damages out there in federal courtroom, the CASE Act’s statutory damages are nonetheless excessively high and can be found in all instances. Underneath the CASE Act, claimants who timely registered their works can request as much as $15,000 per work infringed, with a complete restrict of $30,000 per proceeding. Those who did not well timed register their works can request as much as $7,500 per work infringed, with a restrict of $15,000 per continuing. As copyright regulation specialists have pointed out, in federal courtroom, the supply of excessive statutory damages has made it straightforward for unscrupulous plaintiffs to intimidate and extract settlements from individuals accused of infringement. Faced with the danger of a excessive statutory award, many defendants choose to settle, even once they have a legitimate defense. And with out standards to information these awards, copyright litigation is an unpredictable enterprise. With decrease limitations for plaintiffs and a disproportionate statutory damages framework, the CASE Act might make these problems even worse.

As concerned students have famous, The CASE Act’s statutory damages framework gained’t simply hurt defendants, although. It can additionally create an incentive for classy or well-resourced defendants to strategically choose out of the small claims process once they assume the claimant gained’t be capable of pursue her declare in federal courtroom. This is able to undermine the CASE Act’s core goal, returning unbiased authors and creators to at this time’s unsatisfactory established order.

Would the CASE Act tribunal be a truthful one?

The CASE Act’s
limitations on attraction make it unduly troublesome for events to get meaningful
unbiased assessment of tribunal selections.

Unbiased judicial evaluation is important to ensuring that
any tribunal operates pretty and arrives at the right end result. The CASE Act,
nevertheless, narrowly restricts the power of both social gathering to hunt assessment of the
tribunal’s selections in federal courtroom. Underneath the CASE Act, parties can ask the
tribunal to rethink a willpower, and, with a further payment, events
can ask the Register to assessment the tribunal’s refusal to rethink on abuse of
discretion grounds. Unbiased evaluate by a courtroom is just obtainable in on the
grounds of “fraud, corruption, misrepresentation, or other misconduct,” or if
the tribunal exceeded its authority or did not render a remaining determination.
Default judgments are solely reviewable on grounds of excusable neglect. By
proscribing the grounds for attraction, the CASE Act would go away faulty tribunal
selections primarily unreviewable and unjustly wronged parties with no where
to turn for aid.

The Copyright Workplace in all probability isn’t the best place for a copyright small
claims courtroom.

A tribunal inside the copyright workplace, designed to serve copyright claimants, and with officers chosen and really helpful by the Register of Copyrights might end up friendlier in the direction of copyright claimants, and fewer receptive to arguments that a contested use is authentic or qualifies as truthful use. In live performance with the restrictions on attraction of tribunal selections, this might create a discussion board inclined to difficulty extra favorable judgments for giant content material corporations and different copyright claimants, and in the course of, harm those authors, educators, and creators defending their proper to make use of copyrighted works.

Authors Alliance founder and regulation professor Pamela Samuelson points out that putting the tribunal inside the Copyright Workplace might also run afoul of america Structure. The United States Supreme Courtroom has repeatedly said that infringement claims belong in the federal courts. Putting some copyright infringement claims in an administrative forum could also be unconstitutional beneath Supreme Courtroom precedent.

Authors Deserve Better
Than the CASE Act.

Unbiased authors and creators ought to have entry to a low value option to enforce their copyrights and vindicate their proper to make use of others’ copyrighted works. We help a truthful, unbiased small claims course of that doesn’t invite abuse and wreak havoc on copyright regulation. If Congress is critical about fixing Copyright’s small claims drawback, it needs to do better than the CASE Act. It could actually begin by listening to the quite a few educators, students, librarians, technologists, legal professionals, and public interest policy specialists who’ve all pointed out the Act’s problems. If you want to study extra concerning the CASE Act, take a look at this paper by Authors Alliance founder Pamela Samuelson and Kathy Hashimoto, and this one by regulation professor Ben Depoorter.