The CASE Act: One-Year Anniversary

It’s almost the one-year anniversary of the CASE Act being passed into law. On December 27, the “Copyright Alternative in Small Claims Enforcement Act of 2019” will turn one year old. In case you haven’t heard, the CASE Act creates a three “judge” tribunal called the Copyright Claims Board (CCB) within the U.S. Copyright Office to handle small copyright claims. It was a welcomed development for creators who had a right with no remedy, as this new process would provide a voluntary and affordable alternative to federal court.

In case you have heard, you may be wondering how much of the CCB has been set up so far. Originally the CCB was to begin operations by December 27, 2021, though the CASE Act allows for the Register of the U.S. Copyright Office to extend the deadline by a maximum of 180 days. At the end of last month, the Register announced that she would exercise that extension right, and that the Copyright Office anticipates that the CCB will be up and running well before the statutory deadline of June 25, 2022.

Here is a quick snapshot of the aspects of the CCB that the Office has set up to date.

The CCB Officers Have Been Appointed

In July, the Register of Copyrights announced the appointments of the three CCB Officers (also known as the Copyright Claims Officers or “CCO”s). The CCOs are responsible for reviewing the facts of the small claims dispute and issuing a decision based on the law. The three officers are David Carson, Monica McCabe, and Brad Newberg; all three CCOs bring extensive experience and knowledge to their new positions.

• David Carson most recently headed the Copyright Policy Team in the Office of Policy and International Affairs at the U.S. Patent and Trademark Office and had previously worked for the International Federation of the Phonographic Industry. Before then, he was also the General Counsel for thirteen years and an Associate Register for Policy and International Affairs for two years at the U.S. Copyright Office. His appointment became effective July 6 and his term will last for four years.
• Monica McCabe chaired the intellectual property department at the law firm, Phillips Nizer LLP and has extensive experience in copyright litigation spanning over thirty years, representing both users and copyright owners. She also has been on arbitration panels for the International Trademark Association, the Southern District of New York, and the New York State Supreme Court Commercial Division. Her appointment became effective September 13 and her term will last for five years.
• Brad Newberg led the copyright and trademark litigation practice at the law firm, McGuire Woods for well over a hundred copyright matters in front of federal trial and appellate courts from across the country. He also has extensive experience counseling clients on copyright-related transactional and licensing matters. His appointment became effective August 16 and his term will last for six years.

The Office Is Working On The Specifics of CCB Procedures

In addition to its regular work, the U.S. Copyright Office staff has been tirelessly working on setting up the CCB by soliciting input on policies and procedures governing the small claims process in the form of a notice of inquiry and multiple notice of proposed rulemakings. It is no small task for the Copyright Office to create this brand new tribunal, and the Copyright Alliance applauds the staff for all its work on ensuring that the CCB is properly set up so it can begin operations in 2022.

Here is a quick rundown of what’s happening to date in the CCB rulemaking process. Starting in March, the Copyright Office asked the public to provide comments on the Office’s proposed specific and rules governing CCB procedures and processes including how parties are notified of a CCB claim, how standardized forms should look, what languages the forms should be provided in, how parties exchange various documents, how legal service would work, the specifics of the limited discovery process, and filing fees. So far, the Copyright Office has released four different proposed rulemakings to nail down these specifics. The most recent and newest notice of proposed rulemaking was released earlier this month, regarding the procedures and rules relating to active proceedings.

Besides this most recent notice, and as of today, we at the Copyright Alliance have responded to all of the Copyright Office’s notices and provided various recommendations. Particularly, our comments and recommendations revolve around the basic principles that:

• all fees, procedures, forms, rules, and processes in the small claims court should remain affordable, accessible, and understandable for both creators and users, especially for parties representing themselves in the proceedings;
• forms should be provided in different languages, be standardized, and contain clear and easy to understand instructions in order to ensure that all parties can easily navigate the CCB process, especially self-represented parties; and
• the Copyright Office ensure that it develops helpful tools and resources for all parties, such as a practice guidebook.

Unsurprisingly, the Copyright Alliance often finds itself taking positions that are at odds with groups that opposed to strong copyright protections. Interestingly though, most of the stakeholders, regardless of their views on copyright, tend to all agree on these same three basic principles.

There are still some areas where we disagree with other parties. For example, some online service providers continue to propose that respondents of a CCB claim should have the ability to opt-in to participate in the claim filed against them. Those proposals have been considered and rejected by Congress.  As such, we noted that the Office has no authority to change the opt-out framework clearly established in the law into an opt-in regime.

There are other points where we believe that the Copyright Office’s rules should be adjusted in light of the three basic principles above.  For instance, the Copyright Office has proposed that the fee to commence an action before the CCB should be a flat $100­­– which we disagreed with. Instead, the Copyright Alliance and others suggested a tiered fee structure—originally discussed in the Senate’s report on the CASE Act—that would enable a creator to pay a smaller fee to submit an infringement case (for instance, $25), and then a higher fee (for example, $75) would be paid once the infringement case is determined to be “active” by the CCB. We explained that it’s important to minimize the financial loss to a CCB claimant in the event that the other party ultimately opts out. This is of critical importance given the voluntary nature of the small claims process, and Congress’ goal of ensuring that the process is accessible for those “who cannot otherwise afford to have their claims and defenses heard in federal court.”

Here’s Another Year to You!

With the CASE Act approaching the one-year mark, we recognize that the Copyright Office has taken many concrete steps to make sure that the copyright small claims process administered by the CCB will be an accessible and sound process for all and thank the Office for its hard work. We at the Copyright Alliance join our creator members in the excitement of witnessing these important developments that are making the text of the bill become a reality­­­—especially for creators who have long been left confused and burdened by the federal court process. If you want to make sure that you’re staying updated on developments of the CCB, sign up for our CASE Act alert! You don’t want to miss anything—they grow up so fast. Before you know it and in the blink of an eye, it will be packing up for college.