The Upcoming Impact – Perhaps – of the CASE Act
In my first post in this series, after discussing the basics of good copyright practice for bloggers (and other creators whose distribution is primarily through social media sites), I went on to look at the DMCA and how it may be seen as a useful first-line-of-defense bit of IP protection for content first appearing on such sites. In the second, I looked at the group registration procedures – recently made available by the US Copyright Office – which are specifically useful to bloggers and to managers of blog sites. In the third, I looked at the copyright options currently available for podcasters.
In this post, I’m going to revisit a topic which I blogged about a while ago, which is the (now passed into law) CASE Act, and, specifically, how the new Copyright Claims Board (CCB) – which will get down to work hearing CASE cases in 2022, perhaps early in the year – might be of use to bloggers and podcasters in addressing circumstances where their copyrights appear to have been infringed.
The basic idea of the alternative-to-court process that CASE provides is very similar to that of an Alternative Dispute Resolution (ADR) procedure, although it is more often compared to a “small claims court” specifically dedicated to resolving copyright matters. Back in my first post in this series, I referenced the newly-clarified registration requirements brought about by the Supreme Court decision in Fourth Estate vs Wall-Street.com; in the context of CASE, these requirements are being addressed by the Copyright Office through a revised expedited registration mechanism.
The US Copyright Office, as it so reliably does, has a helpful “explainer” -type document on CASE up on its site: “Copyright Small Claims and the Copyright Claims Board.” The articulation of the intended benefits of the new procedures is worth quoting in full:
- “It will be user-friendly. CCB proceedings will be designed for people to understand and navigate. This will make it easier for parties to represent themselves.
- “There will be streamlined procedures. Discovery will be limited and mostly paper-based, and parties will rely primarily on written materials. CCB proceedings generally will not include formal motions unless requested by the parties or the CCB. As a result, CCB proceedings will require far fewer resources (in money and time) than federal court lawsuits.
- “Monetary damages will be capped at $30,000. No one will be able to bring a proceeding in the CCB seeking more than $30,000 total (with lower per-work limits if someone is seeking statutory damages). If a party is seeking statutory damages, the CCB will not consider whether an infringement is willful. This means that respondents will be assured that they cannot face damages as high as those available in federal court (which can be up to $150,000 per work infringed).
- “It will be voluntary. You will not be required to bring your claims in the CCB and you will be able to opt out of the CCB if you receive a claim. Note, however, that you must make a choice between the CCB and federal court; you cannot file the same claim or counterclaim in both venues. If you opt out, however, the other party can still bring a federal lawsuit against you, which would likely be more expensive and time consuming. If that happens, the fact that you opted out won’t be held against you in the federal court proceeding.
- “There will be safeguards against abusive practice. Parties bringing claims in bad faith may have to pay the other party’s reasonable costs and attorneys’ fees (generally up to $5,000). In certain situations, the CCB will also ban bad faith parties from filing any new matters for one year and may dismiss all of a bad faith party’s pending claims. There may also be a limit on the number of cases that any one party can file in one year.
- “CCB decisions will be posted online. You will be able to review CCB decisions online. These decisions will not be precedential, meaning that the CCB won’t have to follow them in later cases, and they will have no impact on unrelated federal court proceedings.
- “There will be limited review of CCB decisions. If you disagree with a CCB decision in your case, you will be able to seek review, both in the Copyright Office and federal court. It is important to know, however, that the types of issues the Office or a federal court could consider when you challenge a CCB decision will be more limited than if you bring or defend against a case in federal court.
- “CCB Officers will be independent experts in copyright law. The CCB will have three Officers who have deep expertise in copyright law, making them well-suited to determine a variety of copyright matters. The Officers’ performance appraisals cannot be based on the outcome of specific proceedings. There will be no ex parte communications regarding active cases (meaning that neither party can speak to the CCB without including the other party).”
Although some commenters are understandably skeptical of the CCB’s chances of success, in view of the facts a) that CASE is now the law, and b) that the problems it is intended to address are still prevalent, my view is that we should all, at minimum “give CASE a chance.” As with the Copyright Office’s triennial Section 1201 (anti-circumvention) rulemaking, in response to public feedback the Office will be able to make some procedural adjustments to the CCB’s operations, should it deem them prudent (and within its writ as the overseeing agency), as everyone involved gains experience with the new law. We’ll just have to see.
Next in this series, I plan to cover some alternative or supplemental approaches to copyright for blogs, including the use of Creative Commons licenses; and I’ll finish up with a look at some copyright aspects of operating a YouTube channel.