CASE ACT – Does it make sense?

Congress considers copyright small claims court.

A new bill considers creating a small claims court where filmmakers, photographers, jewelry companies, software designers and other copyright holders can bring their small claims cases.  Will it pass?  Right now (as of January 2020), it appears to be held up by one vote.  CPi believes there is no need for a copyright court in Washington D.C. based out of the Copyright Office and with damages that can reach up to $30,000 for willful copyright infringement.  While artists do deserve to be compensated for their works, and infringement does need to be deterred, the CASE ACT will likely lead to “floodgate litigation” and will result in many people being sued by artists without much considering of fair use rights.

Moreover, musicians, artists, photographers, videographers, writers, and illustrators ALREADY HAVE LEGAL RECOURSE for infringement of their Works.  They can already sue in federal court in their jurisdictions assuming they have REGISTERED THEIR CREATIVE WORKS.  So, there is no need to create a whole new Court in D.C. where thousands of lawsuits can be filed.  For registered Works, there are already many copyright lawyers ready to handle your case on a “contingency fee basis” (as the United States Copyright laws allow for the recovery of attorney fees for the Plaintiff if successful).  So, the argument “we deserve to get paid” is not a legitimate argument as they already have access to federal courts and attorneys are already incentivized to take these cases.

Another reason is that Defendants have the legal right to “opt-out” of the Washington D.C. based copyright small claims case.  They do not have to consent to jurisdiction and one reason they may not is that there is no apparent right to appeal or have the case reviewed if the panel makes a bad decision.   Some have argued that only unsophisticated persons would consent to jurisdiction (not knowing any better), and many individuals accused of infringement may not have the resources to put up a legal battle, and thus, the copyright court could turn into a “default judgment mill.”  This argument has merit.

This would also create new expenses for taxpayers in building out the process that does not need to be created because federal courts already exists and are well equipped to deal with copyright infringement claims.

Many organizations oppose or have concerns over the proposed CASE Act including:

American Library Association

Association of Research Libraries

Association of College and Research Libraries

Public Knowledge

We will keep an eye and see if they can get the final vote needed to pass the Copyright Alternative in Small-Claims Enforcement Act (CASE Act).