The case for the CASE Act

Judges use a small wooden mallet to signal for attention or order.

Congress has an opportunity to join together and pass legislation that will provide authors, artists and other creators with a meaningful way to protect their work. Both houses of Congress will soon be voting on the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act”), which creates an alternative forum to pursue low value claims of copyright infringement.

Under the current system, authors whose work has been copied or infringed upon have no cost-effective way to get compensated. The high cost of legal action they need to take (sometimes tens of thousands of dollars) could significantly outweigh the damages they might be awarded. They also can’t bring a claim in a state court because the law requires copyright cases to be heard in federal court.

Copyright owners with small infringement claims essentially have a right without a remedy. When the cost of bringing a federal lawsuit significantly outstrips the value of their claims, this hinders copyright law from fulfilling its central function of incentivizing the creation of new expressive works.

If enacted, the CASE Act will avoid costly copyright lawsuits by establishing a Copyright Claims Board within the United States Copyright Office to resolve claims up to $15,000 for a single work and up to $30,000 in one proceeding in which two or more claims are asserted.

While the CASE Act will provide more cost-effective protection for plaintiffs, copyright defendants will also benefit from the proposed legislation. Currently, defendants can be burdened with significant legal costs and drawn out suits, even where their use is a fair use or otherwise lawful. Participation in a small claims proceeding would cap their damages and likely provide a faster resolution of the dispute.

Participation in the program would be entirely voluntary, and parties could proceed with or without attorneys. Proceedings could be held through phone or videoconferences. Lawyers well-versed in copyright and alternative dispute resolution would decide the claims. The CASE Act would bring positive change to the copyright system by providing copyright holders with a realistic means to protect their works.

Critics have expressed concern that the proposed legislation could deny defendants the right to appeal decisions. Opponents are also opposed to making defendants opt-out of the proceedings if they do not want to participate rather than opting-in if they do. The ABA believes the legislation provides ample opportunity for challenge and review of decisions consistent with constitutional norms. We also consider the “opt-out” path the right one since it provides the parties a better ability to pursue claims against uncooperative respondents.

Both the Senate and House Judiciary committees have already passed the CASE Act this summer. The legislation is now ready to be brought to the floor of both chambers for a full vote. The ABA urges all senators and representatives to support this important legislation.

Judy Perry Martinez is president of the American Bar Association.


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