As an attorney, one of the things that hurts my heart the most is a prospect who comes to me with a great case, but no money to pursue that case in court. In many cases, there is no way to stop an infringer short of a court order, and that court order can only come after a long and expensive trial.
There is a possible solution on the horizon. The United States House of Representatives has recently voted to approve the Copyright Alternative in Small-Claims Enforcement Act of 2019, or the CASE Act for short. This bill, if passed into law, would create a small claims court specifically for copyright infringement cases.
Here’s how Congress envisions this system: There will be a Copyright Claims Board operating out of the Copyright Office, with three officers. These officers will serve as a panel to hear cases of copyright infringement (or cases requesting a declaration that the use is not infringing). The Copyright Claims Board can decide whether a use is infringing (or not infringing), and can fine the guilty party if they feel it is appropriate (within certain monetary limits; this is small claims, after all). They can also issue injunctions, but only if the guilty party agrees to it.
This system would be completely voluntary; the respondent (i.e. the party that did not file a claim with the Copyright Claims Board) can opt out if they don’t want to go this route. If the case does proceed, any final decisions are binding and can be enforced in a court of law.
The bill also allows for proceedings to take place online or using telecommunications technology. This is a huge advantage to a traditional court case, where the parties have to appear in person for the hearings.
Another advantage is that a claim can be filed before completing the copyright registration process with the Copyright Office. The Supreme Court recently ruled that a lawsuit can’t be filed in court until the copyright owner has the Certificate of Registration in their possession, which can put a significant delay on enforcing one’s copyright. With this system, the owner can file a claim with the Copyright Claims Board as soon as they have submitted their application with the Copyright Office. However, the Claims Board will not give a final ruling until the Certificate of Registration has issued, and the case will be dismissed if the application is refused.
Of course, there are opponents to this bill as well. Critics say that large companies will be quick to take advantage of this new system and go after perceived infringers that weren’t worth their time before. They will clog the pipeline with claims that do little more than harass people without much means to fight back. However, there is a provision in the CASE Act to punish people that appear to be filing multiple claims just to harass others, so it’s hard to say if this will become a serious problem.
All in all, the CASE Act appears to be a promising solution for creators without the resources to file a lawsuit in a traditional court. It will be interesting to see whether it is enacted into law, and how it will work out in practice.
If you would like to learn more about the CASE Act, you are welcome to email me at firstname.lastname@example.org.