In years past, writers who found themselves in the unfortunate position of finding their work infringed upon would have only one course of action: to take the infringing party to federal court to pursue damages there. This often would require not only a massive time commitment, but the potential for a great expense in court fees, attorney fees, and damages.
In late December 2020 and as part of the Consolidated Appropriations Act of 2021[1], the CASE Act (Copyright Alternative in Small-Claims Enforcement Act[2]) was signed into law. This new amendment to copyright law is an alternative for writers who have been infringed upon as it commissions a Copyright Claims Board (CCB) made up of three copyright officers specially appointed from the U.S. Copyright Office to hear certain small claim infringement cases. The new claims board is set to be established by no more than a year and a half from when the CASE Act was signed into law (or by June 2022).
The CCB will greatly reduce the costs of taking an infringement case to court (at the minimum, $100 and no more than the costs of filing a claim in federal district court). Writers or other copyright holders who wish to bring a claim before the CCB will be able to do so without the need for legal counsel, and the proceedings will be streamlined.
The CCB’s system will be a completely voluntary process, meaning that those who are defendants in an infringement claim will have the option to opt out of the process completely within 60 days of a filing. That said, one of the great incentives for a defendant to appear before the tribunal is that all damages are limited by design to a total of $30,000. In federal court, statuory damages can run up to $150,000 per instance of infringement, and additional damages could be awarded on top of that amount.
The CASE Act will provide an even playing field as the copyright holders will be required to have their work formally registered with the U.S. Copyright Office[3] prior to filing an infringement case before the CCB. Importantly, this requirement for copyright registration in infringement cases (brought to federal court) was recently underscored in the suit Fourth Estate Public Benefit Corporation v. Wall-Street.com[4].
The CASE Act was also designed to help prevent so-called copyright “trolls” from bringing frivolous claims, excessive counterclaims, and fraudulent defenses in front of the CCB. The tribunal would be empowered to penalize bad actors by setting limits on how many claims can be filed each year, awarding attorneys’ fees in extreme cases, and even dismissing all claims filed by abusers of the system.
The passage of the CASE Act and its CCB is significant to copyright law in the United States, and writers can take comfort in knowing that they will have an additional—and less expensive—recourse at their disposal should they find themselves infringed upon.
Mary Jo (“MJ”) Courchesne is the owner and principal consultant of Gryphon Publishing Consulting. A publishing veteran with more than 20 years of experience in trade, academic, and direct-response publishing, she has spent nearly two decades specializing in licensing, subsidiary rights, and permissions. MJ is a frequent and polished presenter on licensing and copyright. When it comes to intellectual property, she firmly believes that everyone from authors to publishers to corporations should know their rights. To that end, MJ instructed in the George Washington University’s Masters in Publishing program for 13 years, first for 11 years as adjunct professor for a course titled Editorial Content, Rights, and Permissions and subsequently as lecturer in a course on copyright. She currently serves on the Board of Experts for the National Association of Independent Writers and Editors and is a member of the Independent Book Publishers Association and the Society of Children’s Books Writers and Illustrators. MJ has also held memberships with other publishing organizations such as the American Society of Picture Professionals and Washington Publishers.
[1] https://rules.house.gov/sites/democrats.rules.house.gov/files/BILLS-116HR133SA-RCP-116-68.pdf see page 2544 for the start of the CASE Act in the Consolidated Appropriations Act omnibus bill
[2] original text: https://www.congress.gov/bill/116th-congress/house-bill/2426/text
[3] https://copyright.gov/registration/
[4] https://www.scotusblog.com/2019/03/opinion-analysis-a-copyright-owner-cant-sue-for-infringement-before-the-register-has-processed-it
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