Posts Tagged: "small claims"

On October 22, the U.S. House of Representatives passed, by a vote of 410-6, the Copyright Alternative in Small-Claims Enforcement Act (the “CASE Act”). The Act proposes to set up what is in essence a voluntary administrative procedure conducted in the U.S. Copyright Office whereby artists and other copyright holders can protect their copyrights without the cost, expense and difficulty associated with filing a full-blown copyright infringement litigation in federal court. Based on the vote in the House, the CASE Act appears to enjoy widespread, bipartisan support in Congress—a rarity these days, to be sure. The appeal is simple: give individual artists and small companies an affordable mechanism to enforce their rights in their creative works. But although the political appeal of the CASE Act is obvious, the practical reality of the CASE Act is something entirely different. Indeed, there are three gaping holes in the CASE Act which may cause the small claims process it sets forth to have only very narrow appeal and to be an effective dispute resolution mechanism in only a narrow subset of cases.

I have heard it said that a right without a remedy isn’t really a right. This saying completely and accurately sums up my experience with copyright infringement in the modern age. I am not an attorney, let alone a copyright lawyer. I am a small business owner whose livelihood is constantly affected by the lack of reasonable avenues for pursuing infringement of my work. For more than a decade, I have been making my living as a commercial photographer and filmmaker. During that time I have witnessed my works infringed online—an exceedingly easy thing to do in the digital age—but also in print. A most memorable example of this was finding my photo enlarged as the backdrop to a competitor’s trade show booth while my paying client was rightfully using the same artwork across the room at their own booth. An act like this is both unlawful and egregious. But the extraordinary costs of pursuing a copyright infringement suit in federal court prohibit me from seeking recourse this way without taking on the additional risk of bankruptcy.

On May 1, Representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA) officially reintroduced H.R. 2426, the Copyright Alternative in Small-Claims Enforcement (CASE) Act, into the U.S House of Representatives. The bill was originally introduced in 2017 during the 115th Congress but expired after committee review. Along with the House bill, S. 1273, the U.S. Senate version of the bill, has been introduced by another bipartisan group including Senators John Kennedy (R-LA), Thom Tillis (R-NC), Dick Durbin (D-IL) and Mazie Hirono (D-HI). The proposed legislation seeks to establish an alternative forum for resolving disputes involving small claims of copyright infringement. If passed, the CASE Act would create the Copyright Claims Board, which is served by three full-time officers and two full-time attorneys who are appointed by the Register of Copyrights. The Board would be able to render determinations on copyright infringement, declarations of non-infringement or claims for misrepresentation in association with claimed infringement, and would also be able to award damages up to $30,000 to aggrieved parties. The bulk of the bill’s language deals mainly with how the Board will operate as an alternative forum to U.S. district court, with final determinations ultimately reviewable by district court.

If our legal system worked properly, it would be easy enough for her to file for copyright infringement. But under our current claims system, high litigation costs make it almost impossible for authors, writers and artists to protect their livelihoods in court. Independent creators are frequent victims of piracy and other forms of copyright infringement. But without the resources of a record company or publisher, pursuing small claims is financially impossible… Fortunately, there’s a bipartisan policy fix pending in Congress. It’s called the CASE Act (H.R. 3945), and it creates a system that makes pursuing small claims financially and logistically feasible.

Despite the headlines, most infringement is small infringement. The FTC report ignores three important sea changes in the patent ecosystem that should, if anything, obliterate the use of settlement demand amounts or final license fees as any touchstone of bad faith. These are (1) the ten-year long movement to “rationalize” (actually, reduce) patent damages, (2) the “thumb on the scales” given to accused infringers in recent court holdings and legislation (primarily Alice invalidation, revitalized obviousness doctrine, and no-upside-but-everything-to-lose PTAB proceedings), and (3) increased infringer opportunities to extract monetary awards from plaintiff-patentees (Octane/Highmark).