A Case for CASE in Brammer v. Violent Hues?

Following up on yesterday’s post about Brammer v. Violent Hues, it occurs to me that this narrative—at least as much as is publicly available—lends itself to a rationale for the proposed CASE Act, which would create a small-claim copyright tribunal at the U.S. Copyright Office. I won’t repeat all the particulars of the bill itself (see post here), but one of the challenges to the efficacy of CASE is that it is a voluntary alternative to federal court.

When copyright critics like EFF malign the CASE Act, they employ standard hyperbole, claiming it will create a cash-cow for every copyright troll in America. This claim obfuscates the actual mechanisms in the proposal, not the least of which is that a defendant has to voluntarily agree to the tribunal as a dispute resolution. This response is then countered by the prediction that if the small claim option is voluntary, it will never be used, thus making it a boondoggle of a proposal. Admittedly, the voluntary aspect does raise this very question, but after learning about the Brammer case, it seemed like a pretty good example as to why both parties might have opted for a small claim alternative had it existed.

A Relatively Simple Matter Complicated by Litigation

Based on the available evidence, Russell Brammer does not appear to be rabidly litigious; and Fernando Mico of Violent Hues does not appear to be ideologically determined to infringe. Mico made a mistake, perhaps an unwise mistake; but the fact that he removed Brammer’s image from his website upon receipt of a C&D letter indicates that he did not firmly believe he had a right to use the photograph. (This should have weighed against his fair use claim, but that’s another matter.)

At the same time, although Brammer is obviously willing and able to litigate, he cannot be expecting a very high damage award in this particular case. I have no idea whether he requested a settlement fee before proceeding to litigation, which would be normal in this kind of circumstance; but whether he took that step or skipped it, both he and Mico could, theoretically, avoid the up-front cost of litigation by mutually agreeing to move the venue to the proposed USCO tribunal. (Note that I make no judgment about Brammer’s motives or whether I think he should have sued. I’m only looking at the legal process based on his right to make a claim and Mico’s right to a defense.)

The Small Claim Tribunal Would Make Short Work of This Case

The fact that the Virginia Court mucked up the ruling so badly—straining against legal doctrine—emphasizes the value of the small claim option for plaintiffs and defendants in this kind of dispute. Not only is Brammer now forced either to drop his claim or appeal at greater legal cost, but Mico is likewise required to defend himself as the case moves up to the appellate court. And this appeal is only necessary because the district court made egregious errors of law—mistakes the USCO would be unlikely to make—on a relatively straightforward case.

One advantage of the small claim tribunal is that the proposed panel is only expert in copyright law, which is not at all true of federal judges. This can be beneficial to defendants as well as claimants, as there will naturally be cases that favor defendants just as plainly as Brammer favors the plaintiff.  So, yes, I would expect that the USCO tribunal to readily find that Violent Hues had infringed, but I also predict the appeals court will come to the same conclusion, only much later and for legal costs that will exceed the amount of an award the USCO tribunal would likely allow in this instance.

So, looking at the available facts, if Brammer had offered Mico the option of resolution via the small claim tribunal, while making clear that he was able to pursue federal litigation, it seems not unreasonable that Mico might voluntarily choose the small claim venue. Since the alternative would be to opt out and wind up exactly where this case is now, why not take a shot at a simpler and cheaper resolution?

I do not presume to truly know the motives or mindsets of other people. And I also admit to interpolating a bit from the data. But at the same time, this kind of infringement—one creator improperly using the work of another creator—is exemplary of “garden variety” copyright cases. And the whole purpose of the CASE Act is to provide one option—in addition to out-of-court settlements, and other resolutions—to more affordably and efficiently address these low-level conflicts.

For sure, the EFF is wrong to claim that the CASE Act will conjure all manner of copyright mischief, which is simply not possible within the provisions of the bill. At worst, the small claim tribunal won’t work; not enough people will use it, and it will be scrapped as a good intention. But even the known particulars of this Brammer case are so familiar to thousands of rights holders and defendants, that it suggests to me the CASE proposal is likely to be more widely applicable than many critics might assume.

© 2018, David Newhoff. All rights reserved.

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