Creators of all sizes struggle to combat infringement, but for individual creators and small businesses the challenge of combating infringement is compounded by what is best characterized as “a right without a remedy.” For far too many creators, the protections afforded by copyright are more theoretical than practical, as they lack the financial resources to bring a suit for infringement in federal court. In a practical sense, the courthouse doors are locked shut for individual creators and small businesses seeking to enforce their rights. But that could soon change—a small claims tribunal for settling copyright disputes may be on the horizon.
Today, Congressmen Hakeem Jeffries (D-NY) and Tom Marino (R-PA), along with Representatives Doug Collins (R-GA), Judy Chu (D-CA), Ted Lieu (D-CA), and Lamar Smith (R-TX) introduced H.R. 3945, the Copyright Alternative in Small–Claims Enforcement (CASE) Act of 2017, a bill proposing an alternative to federal court, in the form of small claims tribunal to be established within the Copyright Office. Among the most important features of this bill are the ability to opt-out of the proceedings, rendering the process entirely voluntarily, and the cap on damages allowing an award of no more than $15,000 per work infringed and $30,000 total. There’s also a provision allowing the parties to use the pro bono assistance of law students in legal clinics rather than shouldering the cost of attorney’s fees.
According to an AIPLA report on the costs associated with IP litigation, the average cost of litigating a copyright infringement case in federal court from pre-trial through the appeals process is $278,000. To put that number in perspective, on average, a full-time book author made only $17,500 from writing in 2015. Combine that with the fact that most copyright attorneys will not take on a case with a likely recovery of less than $30,000, and it’s clear that as long as federal court continues to be the sole option, small creators and the works they contribute will remain at the mercy of infringers. Implementing this small claims alternative would be a huge step toward ensuring that individual creators and small business have both the exclusive rights guaranteed to them under the law and a practical way to enforce those rights—i.e. a right and a remedy.