Many people still don’t realize that copyright does not need to be formally registered with the U.S. Copyright Office to be protected by copyright law. That said, among the benefits to registration is the right to bring forth a suit for infringement, under which the rightsholder may be awarded legal fees and statutory damages.
“This is all well and good,” you think, “for large publishers. But what about me, the independent author? Surely attorney’s fees, time, and energy required to pursue such a claim would prove detrimental to my own bottom line. What then?”
Enter the CASE Act, introduced to the House by Rep. Jeffries and Rep. Marino. This legislation proposes the creation of a sort of copyright small claims tribunal (called the Copyright Claims Board), which would review claims of infringement and pass limited judgement on the cases presented. In essence, this review board would function in much of the same way as a suit brought forward in federal court, but from within the U.S. Copyright Office itself.
What are the benefits? The Copyright Claims Board would hold its hearings with written submissions or electronic hearings, and the claimants would not necessarily need to hire legal counsel to pursue a case (which would save money). Potential damages awarded would also be limited (currently, the bill is written to limit damages to $30,000), whereas federal court judgements have no set limit. Further, a hearing in front of the Copyright Claims Board would be voluntary, so either the plaintiff or the defendant can opt out of this alternative to a traditional copyright hearing in front of a judge.
Among the organizations who have vocally supported the CASE Act are the Copyright Alliance, the Authors Guild, the American Society of Media Photographers (ASMP), the Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA), the Science Fiction & Fantasy Writers Association (SFWA), the Independent Book Publishers Association (IBPA), and the Digital Media Licensing Association (DMLA).
Some “copyleft” organizations like the Electronic Frontier Foundation (EFF) have suggested that the creation of the Copyright Claims Board would result in frivolous copyright infringement suits. However, given the opt-in nature of the board, it seems highly unlikely for copyright trolls to come out of the woodwork. Others worry that the CASE Act doesn’t allow for ample appeals or would still benefit large companies more than an individual creator due to the opt-out ability for either party.
The CASE Act easily passed the House with bipartisan support last fall but has been on hold in the Senate due to the lone objection of Oregon Senator Wyden. Wyden’s hold on the bill means that the bill will not come up for a vote on the floor unless other senators force it to come to the floor, which will force Wyden to articulate his objections to the bill, and those supporting the bill to likewise explain their views. Senators Kennedy and Durbin have been spearheading the negotiations with Wyden on the bill, and although progress has been made on both sides (including further limits on damage claims and other clarifying definitions), the bill still remains on hold.
That said, it appears that the CASE Act will come up for a vote in the next few weeks. As an author with your own copyrightable materials to protect, I encourage you to read up on the CASE Act and contact your senators to take action when the bill ultimately comes to the floor.
Links for further reading:
CASE Act legislation (you can subscribe for updates at this link as well)
Opinion: Senate Holds Should Not Be Dead Ends
House Approves Contentious Copyright Bill
Copyright Alliance handy form in support of the CASE Act
Legal note: This article is provided as educational reference material only and does not constitute formal legal advice. You should consult your own legal counsel to determine whether any of this material is appropriate for your needs.
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.
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