Congress is back in session and on the House Judiciary Committee’s plate is the Copyright Alternative Small-Claims Enforcement Act of 2017 (CASE Act) or H.R. 3945. This bill was introduced back in October 4, 2017 by 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). The bill aims to strengthen the rights of individual creators by providing a streamlined and less expensive system for bringing and enforcing copyright claims. But if we want this bill to pass, Congress needs to hear from creators.
Here are the six key reasons why creators should support the CASE Act:
- The Small Claims Process Would be Voluntary
The CASE Act provides that the small claims process is voluntary and is an alternative to federal court. Individual creators now have a choice: they can either bring their case to federal court, or take a faster and less expensive route and bring the claim via the small claims process. Defendants also have the opportunity to opt-out of the entire process altogether, though given that the process would be easier and more affordable than federal court, we expect many defendants would decide that the small claims process would be the best way to resolve their claims.
- The Small Claims Process Would be Affordable and Efficient
For many individual creators, federal court is simply out of reach. The CASE Act would provide an affordable and efficient way for individual creators to enforce their copyrights. It recognizes that not all copyrighted works are worth tens of thousands or millions of dollars, but that they still have critical worth for individual creators. Specifically, the CASE Act requires the filing fee to be less than that required in federal court. The small claims process would also be simple enough that creators could proceed without a lawyer, while also allowing law students at law clinics (supervised by an attorney) to represent creators. Additionally, the bill envisions that most proceedings would be carried out remotely, minimizing the need for travel.
- The Copyright Claims Board Would be Fair and Balanced
The CASE Act would make sure that the process treats both sides of any dispute fairly. It would establish a Copyright Claims Board consisting of three full-time Copyright Claims Officers, who are supported by several Copyright Claims Attorneys. Two of the Officers would be attorneys who have “substantial experience” in copyright infringement lawsuits, representing both copyright owners and users. The third Officer would be an attorney who has “substantial familiarity” with copyright law, but is also experienced in alternative dispute resolution, an avenue that allows individuals to resolve disputes outside of the court.
In addition, each Officer will serve only six year terms, with the option of renewal. However, when the small claims process is first established, the Officers’ terms will be staggered to ensure that all of them will complete their terms at different times.
- The CASE Act Allows for a Variety of Claims
While most of the disputes heard by the court will be infringement claims, the CASE Act also provides for a number of related claims. For example, an individual could seek a declaration of non-infringement, which would provide them with an order stating that their alleged infringing activity is not in violation of a copyright owner’s exclusive rights. The bill would also allow someone to challenge a DMCA takedown notice (or counter notice) that they feel contains misrepresentations about the alleged infringing activity.
In drafting the bill, it is evident from the types of claims parties can bring that the needs of both copyright users and individual creators were considered. The bill seeks to strike a balance between protecting creators and their creations, while also providing for copyright users.
- The Small Claims Process is Accountable
It is important that this new forum works effectively and efficiently for both creators and other individuals bringing claims. A provision in the bill requires the Register of Copyrights to conduct a study on the Copyright Small Claims Court for Congress within 3 years after the Board issues its first decision. The study would look at the court’s usefulness, authority, potential damages and other important aspects. For example, the study must address whether greater opportunities for attorney’s fees and other costs should be provided to the parties, and whether the dollar amount of fees and costs should be capped at a certain amount. Additionally, the Register of Copyrights can review other concerns that are considered pertinent regarding the Board. This provision helps ensure that any future kinks in the mechanics of the small claims process are studied, worked out, and improved to achieve the fairness and balance envisioned by the CASE Act and to continue meeting the needs of individual creators and copyright users as they change over time.
- The CASE Act Would Prevent Abuse:
The CASE Act carefully addresses any fear over abuse of the system, and makes sure that the process is fair and proper to serve the needs of both individual creators and copyright users. The bill contains various provisions designed to prevent abuse of the small claims process. Specifically, Officers would be able to award attorney’s fees for bad faith conduct and harassment. This ensures that all sides are held accountable for their actions and addresses any fear of flooding the small claims process with nonviable claims. Copyright Claims Attorneys will also review all incoming claims and counterclaims to ensure that only proper claims, within the scope of the small claims process, come before the Board.