If this NEW Copyright Bill is enacted… be cautious of what you share on the Internet

By Nathan Wahnon

On October 22, 2019, the U.S. House of Representatives (H.R.2426) overwhelmingly voted 410-6 to approve a proposed bill that would provide an alternative route for copyright holders to seek payment for infringed works. If this proposal were made into law, it would create a quasi-judicial body adjudicated by a 3 judge tribunal from the U.S. Copyright Office to handle copyright infringement cases. Ever since the creation of the internet, it has never been easier for potential infringers to copy/paste creative works from artists. Therefore, to combat this exponentially growing issue, this bill was proposed.

The Copyright Alternative in Small-Claims Enforcement Act of 2019 (the CASE Act) was introduced on May 1, 2019, by Rep. Hakeem Jeffries (D-NY). The purpose is to give producers, photographers and other content creators a more efficient way to receive damages if their works are infringed. As the law currently stands, all copyright suits must go through the federal courts; a judicial system which is often time-consuming, costly and associated with many formalities.  

Through the CASE Act, the anticipated outcome is to streamline the whole process for both parties. A Copyright Claims Board (CCB) would work with both parties involved in order to resolve the infringement claims, hiring an attorney will be completely optional. As outlined in H.R.2426, damages would be limited to $15,000 for each infringed work, and top out at $30,000 per claim.

Independent authors and creators highly advocate the proposed Case Act, it would provide an alternate means through which they can seek recourse for copyright infringement on their works through a more affordable and less complex legal process.  However, irrespective of the benefits the Act provides, it is also coupled with numerous underlying issues. In the eyes of the CASE Act’s critics, sometimes ideas which are created with good intentions are poorly thought out and may lead to many more problems.

Seeing as this bill establishes a Copyright Claims Board which is entirely separate from the court system, its determinations would be subject to its own legal interpretations; without many of the traditional legal safeguards or rights of appeal the U.S. justice system usually provides.

The only option to appeal the CCB’s decision would be to ask the Register of Copyrights to review the decision for an additional fee. Theoretically, it could also be possible to ask the federal court to review the CBB’s determination, however, this is only conceivable on the grounds that the CBB decision was issued as a result of “fraud, corruption, misinterpretation, or other misconduct.” Therefore, if a party disagrees with the CBB’s legal interpretation or even its aptitude in making a reasonable decision, the appeal would very likely be unsuccessful and include many complexities. The Act would leave erroneous tribunal decisions essentially unreviewable and unjustly wronged parties with nowhere to turn for relief.

Furthermore, the U.S.Supreme Court recently ruled that the registration process must be completed with the Copyright Office before filing a civil claim for infringement (Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ___ (2019)). However, under the new CASE Act, registration is not required in order to bring an action for infringement. If this bill passes the Senate floor, is subsequently signed by The President and there is no longer a registration precondition, it will become very difficult to verify claim of ownership without official recognition from the Copyright Office.

Under the CASE Act, claimants who timely registered their works can request up to $15,000 per work infringed, with a total limit of $30,000 per proceeding. Those who failed to timely register their works can request up to $7,500 per work infringed, with a limit of $15,000 per proceeding. While it is substantially lower than the statutory damages available in the Federal Court, the statutory damages available in the CASE Act still seem excessively high considering its availability.

Internet advocacy groups such as the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union, have cautioned that the CASE Act could cost the average internet user thousands of dollars for simply posting a couple pictures on their blog or sharing a meme. Through this new facilitation of seeking damages, it may inadvertently pave the way for copyright extortions and shakedowns to practically skyrocket.

Conversely, if faced with a copyright infringement claim under the new Act, defendants have the choice to opt-out of the process. Nevertheless, it is argued that the CASE Act still does not provide enough protection. If someone accused of infringement fails to opt-out of the small claims process within 60 days of receiving notice of the claim, the small claims tribunal can enter a default judgment in favor of the claimant and award them damages. This judgment can then be enforced by the claimant in federal court. While this opt-out procedure is supposed to provide some protection for the defendant, there’s a likelihood that educators, authors and small creators without sophisticated legal knowledge may not fully understand the ramifications of ignoring such a notice – ending up liable for substantial damages awards without a meaningful opportunity to appeal.

Moreover, the CASE Act’s statutory damages framework will not only leave defendants in unfavorable positions. It will also incentivize legally well-versed defendants to strategically opt-out of the small claims process when they believe the claimant does not possess the necessary funds to pursue their claim in federal court. Ultimately undermining the the CASE Act’s core objective and maintaining the current status quo.

Despite its good intentions, the CASE Act does not seem likely to bring an end to copyright infringement, it merely seems like its intention is to provide an alternative to the federal court.

Sources

Adams, S. (2019). The CASE Act: The Road To Copyright Trolling Is Paved With Good Intentions. Available: https://www.techdirt.com/articles/20190718/11385842610/case-act-road-to-copyright-trolling-is-paved-with-good-intentions.shtml. Last accessed 5th Dec 2019.

Falcon, E. (2019). Life-Altering Copyright Lawsuits Could Come to Regular Internet Users Under a New Law Moving in the Senate. Available: https://www.eff.org/deeplinks/2019/07/life-altering-copyright-lawsuits-could-come-regular-internet-users-under-new-law. Last accessed 5th Dec 2019.

Kelly, M. (2019). House overwhelmingly approves contentious new copyright bill. Available: https://www.theverge.com/2019/10/22/20927545/copyright-bill-house-congress-hakeem-jeffries-case-act-dmca. Last accessed 5th Dec 2019.

Sheehan, K. (2019). COPYRIGHT LAW HAS A SMALL CLAIMS PROBLEM. THE CASE ACT WON’T SOLVE IT. Available: https://www.authorsalliance.org/2019/06/04/copyright-law-has-a-small-claims-problem-the-case-act-wont-solve-it%EF%BB%BF/. Last accessed 5th Dec 2019.