After 10 years of haggling, Congress officially passed the The Copyright Alternative in Small-Claims Enforcement (CASE) Act late Monday evening (Dec. 21) as part of the Omnibus COVID-19 Relief Bill. The bill will streamline copyright disputes by creating a small claims tribunal within the U.S. Copyright Office that will adjudicate small claims infringement cases.
Cases would be decided by a three-judge panel of experts in a forum where damages would be capped at $15,000 per claim and $30,000 total. Providing an avenue for copyright infringement disputes to be heard outside of expensive federal copyright litigation creates an affordable process for independent creators to enforce their rights without having to hire attorneys or pay hefty court fees.
The establishment of a copyright claims board was applauded by protectors of creator works in the industry. The American Association of Independent Music (A2IM), Artist Rights Alliance (ARA), Music Artists Coalition (MAC), Nashville Songwriters Association International (NSAI), Recording Academy, Recording Industry Association of America (RIAA), SAG-AFTRA, and Songwriters of North America (SONA) issued the following statement on the passage of the omnibus bill.
“We also welcome the inclusion of consensus-driven intellectual property reforms in the omnibus bill. The Copyright Alternative in Small-Claims Enforcement (CASE) Act and Protect Lawful Streaming Act (PLSA) will strengthen creators’ ability to protect their works against infringement online, and promote a safer, fairer digital environment, which are particularly needed as the arts struggle to survive the pandemic. We look forward to continuing our work to provide greater relief for the American creative community.”
Copyright Alliance CEO Keith Kupferschmid released the following statement after Congress passed the CASE Act, which is expected to be signed into law this week by President Trump.
“The CASE Act has been a critical legislative priority for hundreds of thousands of photographers, illustrators, graphic artists, songwriters, authors, bloggers, YouTubers and many other creators and small businesses across the country,” he said. “For far too long, these individual creators have had rights but no means of enforcing them due to the expense and complexity of federal court. With today’s passage of the CASE Act, creators will have a voluntary, inexpensive and streamlined alternative — a small claims tribunal that will be housed within the U.S. Copyright Office — enabling them to defend their copyrighted works from infringement.”
Kupferschmid continued, “In addition to enjoying widespread bipartisan support in Congress, as evidenced by the 410-6 vote in the House and by diverse stakeholders across the country supporting it, the CASE Act has been the culmination of years of Congressional deliberation, U.S. Copyright Office research and expertise, and stakeholder input, as well as negotiations to address concerns with previous versions of the bill. Today’s passage is a momentous victory for individual creators and small businesses who, despite strong opposition by certain internet behemoths and the organizations that they fund, did not give up their decade-long fight for a level playing field.”
Kupferschmid also told Billboard that when it became apparent that the act was finally going to pass he felt a sense of elation and relief. He called it a victory for the “little guy.”
“I was so thrilled that we got this across the finish line because it is just so important to so many struggling creators,” said Kupferschmid. “It is just wonderful news.”
However, not everyone applauded the act’s swift passage. The Electronic Frontier Foundation’s associate director of policy and activism Katharine Trendacosta called the legislation unconstitutional by putting a court in the Library of Congress, which is part of the legislative branch. In addition, Trendacosta said the act will actually materially harm creators by removing safeguards that are in place to protect free expression and allow infringers to opt out of the courts process.
Kupferschmid disagreed with Trendacosta’s assessment.
“We have heard those arguments for a long time and we have explained why we don’t think they are true… We feel very strongly that it is absolutely constitutional,” adding that the copyright office has had a similar forum for many years called CRB, the copyright royalty board, whose constitutionality has already been litigated.
Although copyright has seemingly little to do with pandemic stimulus, it’s not uncommon for legislation to pass this way as part of a larger bill. “This is something that has been out there for 10 years and has gone through several hearings, it passed the House overwhelmingly and was sent to the Senate committee unopposed. It would have already passed if Sen. [Ron] Wyden had allowed the bill to proceed through regular order,” said Kupferschmid. “So the fact that our opponents to the bill were now screaming about, ‘Oh, they stuck this in, they didn’t do this by regular order.’ Well, we would’ve done it by regular order. If Sen. Wyden had allowed us. It is very very disingenuous. So there’s a little bit of anger about that.”