Copyright may be one of the few nonpartisan issues left in Congress. As the issue of copyright reform continues to heat up, Congressmen Hakeem Jeffries (D-NY) and Tom Marino (R-PA), along with Representatives Doug Collins (R-GA), Judy Chu (D-CA), Ted Lieu (D-CA), and Lamar Smith (R-TX) introduced in the House of Representatives the Copyright Alternative in Small-Claims Enforcement (CASE) Act, which is intended to give creators a cost-effective way to enforce their rights.
The idea of a copyright small-claims court, which has been discussed in Washington D.C. for several years, would not have a substantial effect on major labels or publishers. But it could make it easier for small companies and independent creators to enforce their rights — especially where merchandise is concerned. And it could be a game-changer for photographers and visual artists.
The potential penalties in copyright lawsuits often get a lot of attention: statutory damages can reach as high as $150,000 for willful infringement. What gets discussed less often, however, is the cost of bringing federal litigation to enforce those rights in the first place.
The average cost of litigating a copyright case, from pre-trial proceedings through an appeals process, has reached $278,000, according to a report by the American Intellectual Property Law Association (AIPLA). That means it’s seldom worthwhile to bring a case that involves one work — and that independent creators lack a practical recourse under the law. (Copyright is federal law, while small-claims courts are under state authority.) Arguably, it also encourages creators to join class-action lawsuits, where the potential statutory damages can add up to an existential issue for alleged infringers.
The CASE bill, then, would establish a small-claims system within the Copyright Office, where creators could represent themselves or seek the pro bono assistance of law students. (Although this system would function as a court in practice, it may not technically be considered a court, since the Copyright Office operates under the authority of Congress and not the judicial branch of government.) Damages would be capped at $15,000 for each work infringed, and $30,000 in total. The system would be staffed by “Copyright Claims Officers” appointed by the Copyright Office, and it would follow federal law.
Participation in the system is voluntary on both sides; it has to be, since 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. Significantly, anyone threatened with a copyright lawsuit — in a cease and desist letter, for example — could use this system to file for declaratory judgment that the use of the work in question is either not infringing or else qualifies as fair use.
“This isn’t going to do anything about the problem of mass infringement online outside the U.S.,” says David Lowery, the Camper Van Beethoven and Cracker frontman, who has become an outspoken advocate for creators rights. “But overall this is really important for creators.”
It’s expected that this and some other copyright bills that have been introduced recently will eventually be combined into an omnibus bill that will address several issues at once. If that doesn’t happen — either because the process takes too long or Congress devotes more attention to other issues — lawmakers could try to move this bill forward by itself.