The Senate Judiciary Committee voted Thursday to move the Copyright Alternative in Small-Claims Enforcement (CASE) Act out of committee, bringing the legislation aimed at streamlining copyright disputes one step closer to becoming law. The bill can now go to the floor to be voted on by the full Senate.
The CASE Act, if ultimately passed, would create a copyright small claims court, allowing for arbitration, within the Copyright Office. Creators could elect to use the system and either represent themselves or seek the help of law students on a pro bono basis.
Damages would be capped at $15,000 for each work infringed, and $30,000 in total. The system would be staffed by three full-time “Copyright Claims Officers” to be appointed by the Librarian of Congress.
Claims officers would be tasked with rendering determinations on claims and counterclaims, along with conducting hearings, facilitating settlements, awarding relief and maintaining records of each proceeding, among other duties.
Sen. John Kennedy [R-LA] introduced the bill in the Senate on May 1. Co-sponsors of the bill are a bipartisan bunch and include Sens. Dick Durbin [D-IL], Thom Tillis [R-NC], Mazie K. Hirono [D-HI], Marsha Blackburn [R-TN], Jeanne Shaheen [D-NH], Tom Udall [D-NM], Kevin Cramer [R-ND], Chris Coons [D-DE] and Patrick Leahy [D-VT].
Participation in the system is voluntary on both sides, as the Sixth Amendment guarantees the right to a trial by jury. But since the cost of federal litigation is so high, potential defendants have at least some incentive to opt in. The average cost of litigating a copyright case, from pre-trial proceedings through an appeals process, reached $278,000 as of 2017, according to a report by the American Intellectual Property Law Association (AIPLA).
DC-based anti-piracy group the Copyright Alliance cited the cost-prohibitive nature of the current federal system as why they support the CASE Act.
“Under the law, when a creator’s work is infringed, the only option they have is to take their copyright infringement case to federal court. But federal court is often far too expensive and complex to navigate for most individual creators and small businesses that own copyrights,” said Copyright Alliance CEO Keith Kupferschmid. “What this means is that America’s creators have rights under the law but no practical way to enforce those rights when someone steals from them. The CASE Act will help change that by providing creators with a voluntary, inexpensive, and streamlined alternative to federal court that they can use to protect their creativity and their livelihoods, and in doing so fulfill the purposes of the Constitution.”
Recording Academy chief indusrtry, government and member relations officer Daryl Friedman echoed that sentiment, stating, “With today’s passage of the CASE Act out of the Senate Judiciary Committee, creators are one step closer to defending their work against copyright infringement. The many independent songwriters, artists and producers in our membership will finally have effective remedies to protect against the frequent and willful infringement perpetuated daily by violators across the country.”
Meredith Rose, policy Counsel at the public interest nonprofit Public Knowledge, which promotes an open internet, warned against how the CASE Act might execute the small claims court and how the bill was passed through the committee. She said in a statement, “It lacks meaningful opt-in consent for all parties, structural safeguards against abuse, and legal accountability through a right of appeal. The bill would allow an unappealable tribunal to assign damages of up to $30,000, or nearly half the income of the average American household. A tribunal with that kind of punitive power must be accountable. The system envisioned by the CASE Act is not.
“Moreover, we are deeply disturbed by the lack of process surrounding the consideration of this bill. The Senate Judiciary Committee passed the bill today without any hearings on its content, and without any opportunities for all stakeholders to voice their concerns. For any bill — let alone one that could drive the average American household into bankruptcy — this lack of transparency is inexcusable.”