CASE Act Promises Long-Overdue Access to Justice for Individuals and Small Businesses in the Arts

“Organizations representing some of the most influential and wealthy tech companies in the world have resisted past efforts to establish a small claims system.”

Jenna Close is a freelance commercial photographer and owner of a small business that licenses still images and videos to both domestic and international clients. She and her partner work 60-80 hours a week booking work, shooting, billing, accounting, marketing, and continuing to develop and maintain their skills.

Jenna’s images are widely infringed online. She’s found exact reproductions of her work on competitors’ websites, on websites falsely advertising that the photographs are free to use, and she’s even come across instances where companies have photoshopped their own products into her images.

Despite the brazen misuse of her images that she frequently encounters, Jenna does not generally pursue claims against her infringers because it is too expensive and time consuming to do so. It’s just not worth the cost—even though she registers at least some of her images for copyright protection, and so would be entitled to statutory damages and attorneys’ fees with respect to those images in case of a court victory.

An Updated Solution to An Ongoing Problem

Unfortunately, Jenna’s story is not unique. For countless individual artists and small businesses, combating the unauthorized use of their creative works online is a source of enduring frustration. The frequency and ease with which photographs, sound recordings, videos, and other works of authorship are shared on the Internet leaves those without significant time and resources little recourse when they encounter infringement. But now, after years of advocacy by creators like Jenna, new legislation promises long-overdue support for these marginalized groups in the ongoing fight against overwhelming infringement in the digital age.

Last week, the Copyright Alternative in Small Claims Enforcement (CASE) Act was introduced in the House (H.R. 2426) by Representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA), who were joined by co-sponsors Jerry Nadler (D-NY), Martha Roby (R-AL), Hank Johnson (D-GA), Ben Cline (R-VA), Judy Chu (D-CA), Ted Lieu (D-CA), and Brian Fitzpatrick (R-PA). The bill was also introduced in the Senate (S. 1274) by Senators John Kennedy (R-LA), Thom Tillis (R-NC), Dick Durbin (D-IL), and Mazie Hirono (D-HI).

An updated version of an ongoing legislative effort, the CASE Act comes after years of committee hearings, proposals, and a 2013 report by the Copyright Office recommending “the creation of an alternative forum that will enable copyright owners to pursue small infringement matters and related claims arising under the Copyright Act.”

In a nutshell, the CASE Act creates a venue in the Copyright Office where small copyright claims can be resolved expeditiously. The forum is voluntary—anyone can opt out and resolve their disputes in federal court. To ensure that claims are meritorious, the Act has limits both on the number of claims that can be brought by an individual and on the amount of any recovery. It additionally imposes penalties on those who bring bad-faith claims.

Addressing the Opposition

Nevertheless, there are those who would oppose even this limited relief for creators. Organizations representing some of the most influential and wealthy tech companies in the world have resisted past efforts to establish a small claims system, arguing that it will be susceptible to abuse and extortive behavior by claimants.

Critics of the CASE Act sometimes ask, “What’s so special about copyright?” If a response to the question is required, it first bears noting that the CASE Act is not suggesting something unique or unprecedented. Indeed, a body of federal jurisprudence confirms Congress may create special tribunals in courts or in agencies to address federal claims in a more efficient manner.

Copyright infringement claims left unenforced are capable of inflicting special harms because they affect more than individual litigants. The Constitution vests Congress with the right to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

These exclusive rights, unlike other such rights, are not intended to end with the Author, but to flow from the benefits the Author obtains through licensing and disseminating her works to all of society. The benefits come not only in the diffusion of knowledge and beauty that naturally flow from publishing works to the public, but through the ripple effects that occur in countless communities across the country. That is what is so special about copyright, and that is why it’s time for the CASE Act to become law.

 

The Author

Sandra Aistars

Sandra Aistars is Clinical Professor at Antonin Scalia Law School, George Mason University, leading the law school’s Arts & Entertainment Advocacy Program. She also serves as Senior Scholar and Director of Copyright Research and Policy at the law school’s Center for the Protection of Intellectual Property (CPIP).

Sandra Aistars

Kevin Madigan is Deputy Director at the Center for the Protection of Intellectual Property (CPIP) at Antonin Scalia Law School, George Mason University. Kevin works closely with CPIP scholars in their research and promotion of comprehensive intellectual property law and policy. He writes about current IP issues at his mistercopyright.org. For more information and to contact Kevin please visit his profile page at CPIP.

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